[EL] NAMUDNO

Sat Nov 10 16:18:10 PST 2012

Looking at states
where<http://en.m.wikipedia.org/wiki/File:Us_s5_cvr08.PNG>
pre-clearance
is required statewide, and a
map<http://www.nytimes.com/interactive/2008/11/05/us/politics/20081104_ELECTION_RECAP.html?ref=politics>showing
counties where John Kerry outperformed Obama (2008), I beg the
question: Might Obama's election performance actually suggest that the
antiquated Section 5 formulas are *not *wildly outdated? (as opposed to the
conventional argument that election of an African American President
implies that they are).

Only 18 of the 50 states possess a county where Kerry outperformed Obama by
more than 5%, yet 8 of the 9, where pre-clearance is required statewide,
possess such a county.

24<http://i201.photobucket.com/albums/aa175/Inoljt/US_Election04-08shift.png>of
the 50 states had at least one county where Kerry outperformed Obama
by
at least 1%; these included all nine of pre-clearance states.

And then, of course, there are probably many
more-elaborate<http://www.pollster.com/blogs/StateVotebyRace-thumb-600x600.png>
observations
supporting the same thesis. (I'm not familiar with any readily available
data comparing 2012 with 2004, but surely there'd be more prevalence of
Kerry outperforming Obama).

(After writing the above, I'm now speculating that these things have
probably already been pointed out on this listserv, perhaps before I joined
it. Sorry if these observations are duplicative).

Personally, I don't have a fervent position on how much longer
pre-clearance should be required (I probably wouldn't favor doing away with
it today). And I certainly take no satisfaction that the nationally (much)
less-popular John Kerry, was disproportionately more-popular in places with
historic racial voting discrimination (rather, I would have been pleased if
they were proportionate, as that would have been a nice testament to
progress). However, Obama's election performance, in spite of the national
victories, cannot seem to be supportive of the argument that Section 5 is
outdated (if anything, it would seem to support the opposite contention).

Thomas Cares

P.S. Sorry I haven't responded to the VBM/line-standing thread.
Distractions prevailed.

On Fri, Nov 9, 2012 at 2:36 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

>  I meant that in the campaign finance context, Roberts in Citizens United
> was done with half measures to try to save campaign finance law.
> Similarly, he will see that there's no need to try to use half measures, as
> in NAMUDNO, to save the Voting Rights Act.
>
>
> On 11/9/12 2:33 PM, Steve Hoersting wrote:
>
> Rick, do you want this sentence back? Or do you want simply to explain
> what you meant?
>
> Coming after the reelection of an African American president and rising
> minority turnout, I have little doubt these Justices will say, as Roberts
> said in a campaign finance case, “Enough is enough.”
>
> Steve
>
> On Fri, Nov 9, 2012 at 5:25 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
>
>>   Breaking News: Supreme Court To Consider Constitutional Challenge to
>> Voting Rights Act; Reading Between the Lines in The Cert Grant<http://electionlawblog.org/?p=43966>
>> Posted on November 9, 2012 2:17 pm <http://electionlawblog.org/?p=43966>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> [with apologies for the delay in posting as the Election Law Blog server
>> was down.]
>>
>> The Supreme Court’s order today<http://www.supremecourt.gov/orders/courtorders/110912zr_d18e.pdf>(coming, probably not coincidentally right after, rather than right before
>> the election), was hardly unexpected.  We’ve all been expecting the Court
>> to take this case, and, I suspect use it as a vehicle to strike down the
>> preclearance provision of the Voting Rights Act.  Here’s what I wrote last
>> month on SCOTUSBlog<http://www.scotusblog.com/2012/09/online-vra-symposium-the-voting-rights-act-congressional-silence-and-the-political-polarization/>
>> :
>>
>> The Supreme Court’s 2009 decision in *NAMUDNO v. Holder<http://www2.bloomberglaw.com/public/document/Northwest_Austin_Mun_Utility_Dist_No_One_v_Holder_129_S_Ct_2504_1>
>> * was an invitation to Congress to go back and make changes to Section 5
>> of the Voting Rights Act to keep the Court from striking down the provision
>> as an unconstitutional exercise of Congressional power. At oral argument<http://www.oyez.org/cases/2000-2009/2008/2008_08_322>,
>> both Chief Justice Roberts and Justice Kennedy – believed to be the key
>> votes in this case – expressed considerable skepticism about requiring only
>> some jurisdictions (mostly in the South) but not the rest of the country to
>> get permission from the federal government for all changes in their voting
>> rules, from redistricting to voter id to moving a polling place. *NAMUDNO
>> *was in effect a remand, perhaps an act of statesmanship by Roberts,
>> Kennedy, or both, to give Congress more time to rework the Act.  Yet
>> Congress did not respond, and now the Court seems almost certain to take
>> either the *Shelby County v. Holder<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>
>> * case or another case soon, and likely to strike down the Act. In this
>> post I ask, why did Congress fail to act to fix the Act after *NAMUDNO*?
>>
>> What’s especially notable about today’s cert grant
>> <http://www.scotusblog.com/2012/11/court-to-rule-on-voting-rights-law-2/>is
>> that the Court mildly rewrote (adding in the 14th amendment question) and
>> limited the question presented to the following: “”Whether Congress’
>> decision in 2006 to reauthorize Section 5 of the Voting Rights Act under
>> the pre-existing coverage formula of Section 4(b) of the Voting Rights Act
>> exceeded its authority under the Fourteenth and Fifteenth Amendments and
>> thus violated the Tenth Amendment and Article IV of the United States
>> Constitution.”
>>
>> This means that the Court will focus specifically on the question whether
>> Congress exceeded its power in not updating the coverage formula—states and
>> parts of states are covered based on voter turnout and the use of a test or
>> device in 1964, 1968, or 1972.  The argument is that Congress couldn’t use
>> those proxies anymore to identify states which still need additional
>> federal oversight.  It is exactly the argument which Chief Justice Roberts
>> latched onto at the oral argument in *NAMUDNO.  *Further, the references
>> to the 10th amendment power of the states and the republican form of
>> government clause show a great concern about federalism and states rights,
>> a high concern of Kennedy.  Kennedy and Roberts are likely the swing
>> Justices here—if they swing at all, it is only for prudential reasons about
>> what it would mean politically to overturn the Act.
>>
>> Coming after the reelection of an African American president and rising
>> minority turnout, I have little doubt these Justices will say, as Roberts
>> said in a campaign finance case, “Enough is enough.”   I don’t expect
>> statesmanship or blinking from Court conservatives this time.
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43966&title=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
>> Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
>>   “Big money lost, but don’t be relieved”<http://electionlawblog.org/?p=43957>
>> Posted on November 9, 2012 11:22 am <http://electionlawblog.org/?p=43957>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> I have written this commentary
>> <http://www.cnn.com/2012/11/09/opinion/hasen-outside-political-money/index.html?iref=allsearch>for
>> CNN Opinion.  It begins:
>>
>> Those who oppose the 2010 Citizens United Supreme Court ruling and the
>> explosion of outside money in politics might be breathing a sigh of relief
>> that more than $1 billion in outside spending<http://www.cbsnews.com/8301-250_162-57541812/outside-spending-on-2012-elections-reaches-$1-billion/>in federal elections, which heavily favored Republicans, did not seem to
>> buy the results that the big spenders wanted. After all, most of the
>> candidates backed by Karl Rove’s Crossroads groups and the Chamber of
>> Commerce, beginning with Mitt Romney, lost their races. But those concerned
>> about the role of money in politics shouldn’t be relieved. Not at all. Here
>> are three reasons to keep worrying:
>>
>>
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43957&title=%E2%80%9CBig%20money%20lost%2C%20but%20don%E2%80%99t%20be%20relieved%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>>   More Ballots Cast for Democrats Rather than Republicans in House Races
>> But Republicans Control House <http://electionlawblog.org/?p=43954>
>> Posted on November 9, 2012 10:14 am <http://electionlawblog.org/?p=43954>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> See Think Progress<http://thinkprogress.org/justice/2012/11/07/1159631/americans-voted-for-a-democratic-house-gerrymandering-the-supreme-court-gave-them-speaker-boehner/?mobile=nc>,
>> Peter Shane<http://www.huffingtonpost.com/peter-m-shane/redistricting-ohio_b_2094148.html>
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43954&title=More%20Ballots%20Cast%20for%20Democrats%20Rather%20than%20Republicans%20in%20House%20Races%20But%20Republicans%20Control%20House&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments
>> Off
>>   “Citizens United Is Still Worth Hating”<http://electionlawblog.org/?p=43951>
>> Posted on November 9, 2012 9:55 am <http://electionlawblog.org/?p=43951>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Eric Posner writes<http://www.slate.com/articles/news_and_politics/view_from_chicago/2012/11/campaign_finance_in_2012_presidential_election_super_pacs_lost_but_citizens.html>for
>> *Slate.*
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43951&title=%E2%80%9CCitizens%20United%20Is%20Still%20Worth%20Hating%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>>   “Money’s Influence on Politics Extends Way Beyond Election Day”<http://electionlawblog.org/?p=43948>
>> Posted on November 9, 2012 9:52 am <http://electionlawblog.org/?p=43948>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Ellen Miller writes<http://sunlightfoundation.com/blog/2012/11/09/moneys-influence-on-politics-extends-way-beyond-election-day/>for Sunlight.
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43948&title=%E2%80%9CMoney%E2%80%99s%20Influence%20on%20Politics%20Extends%20Way%20Beyond%20Election%20Day%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in campaign finance <http://electionlawblog.org/?cat=10> | Comments
>> Off
>>   “It’s not the 2000 recount, but voting snafus and disputes still
>> plague Florida” <http://electionlawblog.org/?p=43945>
>> Posted on November 9, 2012 9:26 am <http://electionlawblog.org/?p=43945>
>> by Rick Hasen <http://electionlawblog.org/?author=3>
>>
>> Tom Curry reports<http://nbcpolitics.nbcnews.com/_news/2012/11/08/15029964-its-not-the-2000-recount-but-voting-snafus-and-disputes-still-plague-florida#.UJ08FYnVCdo.twitter>for NBC.
>>  [image: Share]<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D43945&title=%E2%80%9CIt%E2%80%99s%20not%20the%202000%20recount%2C%20but%20voting%20snafus%20and%20disputes%20still%20plague%20Florida%E2%80%9D&description=Breaking%20News%3A%20Supreme%20Court%20To%20Consider%20Constitutional%20Challenge%20to%20Voting%20Rights%20Act%3B%20Reading%20Between%20the%20Lines%20in%20The%20Cert%20Grant%0APosted%20on%20November%209%2C%202012%202%3A17%20pm%20by%20Rick%20Hasen%0A%0A%5Bwith%20apologies%20for%20the%20delay%20in%20posting%20as%20the%20Election%20Law%20Blog%20server%20was%20down.%5D%0A%0AThe%20Supreme%20Court%E2%80%99s%20order%20today%20%28coming%2C%20probably%20not%20coincidentally%20right%20after%2C%20rather%20than%20right%20before%20the%20election%29%2C%20was%20hardly%20unexpected.%20%20We%E2%80%99ve%20all%20been%20expecting%20the%20Court%20to%20take%20this%20case%2C%20and%2C%20I%20suspect%20u>
>>   Posted in election administration <http://electionlawblog.org/?cat=18>,
>> The Voting Wars <http://electionlawblog.org/?cat=60> | Comments Off
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
>> Now available: The Voting Wars: http://amzn.to/y22ZTv
>>
>>
>> _______________________________________________
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>>
>
>
>
> --
> Stephen M. Hoersting
>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
> Now available: The Voting Wars: http://amzn.to/y22ZTv
>
>
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