“Congress should preempt the Supreme Court on Section 2 of Voting Rights Act”

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Maureen Edobor is a new election-law academic recently hired as an assistant professor at Washington and Lee. Here’s an excerpt from a piece she just published in The Hill, which criticizes the 8th Circuit’s holding that no private right of action exists to enforce Sec. 2 of the VRA:

Yet, the 8th Circuit seeks to foreclose judicial opportunities to vindicate the Fifteenth Amendment, and by extension, Section 2’s right to vote free from racial discrimination while both political parties (yes, even Republicans) are embracing expanded voter access amid nascent statistical evidence that suppressive laws have negligible partisan effects on elections. Interpreting the Republican Party’s bait-and-switch on mail-in voting and expanded early voting most generously and considering the slim Republican majority in the House, one could imagine the slightest possibility for bipartisan clarification on Section 2’s private right of action to undo the gratuitous Gordian knot tied by the 8th Circuit, and possibly moot the litigation. Certainly, Congress needs to act, while it still can send a clear rebuke of the Supreme Court’s decision, drawing upon its legacy when it did the same in 1982, after the Supreme Court intentionally misstated Section 2’s standard of proof in Mobile v. Bolden. This is the least Congress can do, and not beyond the realm of reality as last Congress, a bipartisan and narrow revision to the Electoral Count Act was made to clarify the vice president’s role in the counting of electoral votes after the atrocities of Jan. 6.   

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5th Circuit Will Hear Galveston Redistricting Lawsuit En Banc, Offering Another Chance to Weaken the Voting Rights Act

Voting Rights Act

Here’s the order.

Here’s my earlier coverage:

Breaking: Fifth Circuit Panel, While Affirming that Galveston, Texas Violated the Voting Rights Act, Calls for En Banc Rehearing So They Can Rule Against Galveston

Well this is an interesting (and disturbing) order. A Fifth Circuit panel has unanimously held that the district lines for the legislative body in Galveston County, Texas violates the Voting Rights Act as currently interpreted by the 5th Circuit by diluting the power of black and Latino voters.

But the panel in the same order says that existing circuit precedent which allows considering a so-called rainbow coalition of black and Latino voters cannot be considered together for purposes of the Voting Rights Act, even if they vote together to prefer candidates of their choice against the preferences of the white majority of voters. “That precedent establishes the validity of so-called minority-coalition claims like those brought in this case. And this panel is bound by it under the rule of orderliness. But the court’s decisions in this respect are wrong as a matter of law. The text of Section 2 does not support the conclusion that distinct minority groups may be aggregated for purposes of vote-dilution claims.”

Kind of sense that the 5th Circuit sitting en banc (as a whole) will be likely to agree; it’s the most conservative appeals court body in the country.

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“Why Judges in the Trump Jan. 6 Trial Need a Rocket Docket”

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From Randall Elliason in the NYT:

If Donald Trump is the Republican nominee for president in 2024, it’s now clear he will likely still have criminal indictments hanging over his head on Election Day. It’s possible that his criminal liability for the events leading up to the Jan. 6 riot at the Capitol will remain unresolved.

If that happens, voters will go to the polls without knowing whether one of the candidates in the current election is criminally responsible for trying to overturn the last one and subvert the will of the voters….

Of the four criminal cases pending against Mr. Trump, the federal election interference prosecution in Washington currently has the best chance of going to trial before the 2024 presidential vote. The trial date is set for March 4….

Mr. Trump has moved to dismiss the case on various grounds, including claims of presidential immunity and violation of the double jeopardy clause. For most pretrial motions, if the motion is denied, the defendant must wait to raise the issue again on appeal following conviction, if there is one.

But these two motions fall into a narrow category of claims that usually entitle a defendant to an interlocutory appeal — in this case, an appeal before trial….

This case requires similar urgency. The initial appeals here could be easily heard and decided within a few weeks. Whether to grant a rehearing before the full Court of Appeals is discretionary, but if it does grant such a hearing, it needs to be equally speedy.

After the District of Columbia Circuit rules, the losing party will seek Supreme Court review. If Mr. Trump loses the motions, my own hunch is that the Supreme Court may not take the case. In past disputes the justices have not shown much willingness to go out of their way to help Mr. Trump, and the last thing this embattled court needs right now is to wade into another controversy. But if the court does feel the need to weigh in on these novel constitutional issues, it also needs to move very swiftly.

There’s no reason the entire process, including Supreme Court review, could not be completed by January. That would allow the trial date to stay on track if the motions are denied.

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“Court turns down request for relief in Arizona leadership’s voting law dispute”

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This is an issue that comes up regularly: whether legislators can be deposed in redistricting and voting-rights litigation when purpose-based challenges are made to these laws. From Scotus blog:

The Supreme Court on Monday afternoon denied a request from the leaders of the Arizona legislature to put on hold an order that would require them to be deposed about the legislature’s enactment of voting laws that make it more difficult to register to vote. In a brief unsigned order without any noted dissents, the justices turned down an emergency filing from Ben Toma, the speaker of the Arizona House of Representatives, and Warren Petersen, the president of the Arizona Senate.

The laws at the center of the dispute were enacted in 2022. They require would-be voters to provide proof of U.S. citizenship or face penalties, such as a ban on voting in most elections or an outright bar on voting by mail. The Biden administration and other plaintiffs, including the Democratic National Committee and the Arizona Democratic Party, went to federal court to challenge the laws, arguing that they violated (among other things) the 14th Amendment’s guarantee of equal protection and federal voting laws.

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“Pence told Jan. 6 special counsel harrowing details about 2020 aftermath, warnings to Trump: Sources”

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Must read: A lot of significant new information in this ABC story . One of the most significant is that Pence, and presumably many others around him, fully understood that that there would be a shift in the vote toward Biden as mail-in ballots were counted:

Sources said Pence acknowledged to Smith’s team that even before Election Day on Nov. 3, 2020, he was aware that the Trump-Pence ticket was expected to take a big early lead in the polls that would then gradually fade as more mail-in ballots were counted.

Also this, which I don’t believe has been revealed before, in late December 2020:

As Pence described it to investigators, according to sources, he understood by late December 2020 that the Trump campaign had run out of legal options in its fight to remain in power — but he urged lawmakers to raise potentially credible allegations of fraud during the upcoming proceedings on Jan. 6, 2021, when Pence would be presiding over Congress to certify the election results and decide whether to reject any votes.

In a meeting at the White House in late December 2020, as many as 20 House Republicans erupted in applause after Pence told them to “get your evidence together” and assured them “we [will] get our day in Congress,” with an opportunity for all of the evidence to be heard before the election would be certified, sources said he told Smith’s team.

Pence told investigators he was then still “very open to the possibility that there was voter fraud” in the election, and he was focused on following the facts and the law, according to the sources.

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