[EL] ELB News and Commentary 2/26/13
Rick Hasen
rhasen at law.uci.edu
Mon Feb 25 21:22:27 PST 2013
Jess Bravin Preview of Shelby County Argument
<http://electionlawblog.org/?p=47694>
Posted on February 25, 2013 9:04 pm
<http://electionlawblog.org/?p=47694> by Rick Hasen
<http://electionlawblog.org/?author=3>
Here
<http://online.wsj.com/article_email/SB10001424127887323699704578326630116883670-lMyQjAxMTAzMDIwNTEyNDUyWj.html?mod=wsj_valettop_email>,
in the WSJ.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Buffalo Conference March 8 and 9 on Lobbying and Campaign Finance
Reform <http://electionlawblog.org/?p=47691>
Posted on February 25, 2013 8:53 pm
<http://electionlawblog.org/?p=47691> by Rick Hasen
<http://electionlawblog.org/?author=3>
Great lineup.
<http://www.law.buffalo.edu/news.host.html/content/shared/law/articles/current/130225-Lobbying.detail.html>
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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"Turner urges AG to drop Voting Rights Act challenge (UPDATE)"
<http://electionlawblog.org/?p=47689>
Posted on February 25, 2013 8:53 pm
<http://electionlawblog.org/?p=47689> by Rick Hasen
<http://electionlawblog.org/?author=3>
The /Houston Chronicle /reports.
<http://blog.chron.com/texaspolitics/2013/02/turner-urges-ag-to-drop-voting-rights-act-challenge/>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Edward Blum defies odds in getting cases to Supreme Court"
<http://electionlawblog.org/?p=47686>
Posted on February 25, 2013 8:34 pm
<http://electionlawblog.org/?p=47686> by Rick Hasen
<http://electionlawblog.org/?author=3>
WaPo reports
<http://www.washingtonpost.com/lifestyle/style/edward-blum-defies-odds-in-getting-cases-to-supreme-court/2013/02/25/2d6e06ac-7b8e-11e2-a044-676856536b40_story.html>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"High Court Will Not Review Challenge To Corporate Campaign
Contribution Ban" <http://electionlawblog.org/?p=47683>
Posted on February 25, 2013 8:29 pm
<http://electionlawblog.org/?p=47683> by Rick Hasen
<http://electionlawblog.org/?author=3>
Bloomberg BNA
<http://news.bna.com/mpdm/MPDMWB/split_display.adp?fedfid=29831454&vname=mpebulallissues&jd=a0d6q8v3u9&split=0>reports
on /Danielczyk./
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Posted in campaign finance <http://electionlawblog.org/?cat=10> |
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Franita Tolson, Ilya Shapiro Debate Shelby County on HuffPost Live
<http://electionlawblog.org/?p=47680>
Posted on February 25, 2013 8:26 pm
<http://electionlawblog.org/?p=47680> by Rick Hasen
<http://electionlawblog.org/?author=3>
Watch.
<http://www.statesman.com/news/news/voting-rights-case-has-texas-implications/nWZTf/>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Voting rights case has Texas implications"
<http://electionlawblog.org/?p=47677>
Posted on February 25, 2013 8:22 pm
<http://electionlawblog.org/?p=47677> by Rick Hasen
<http://electionlawblog.org/?author=3>
The Austin American Statesman reports
<http://www.statesman.com/news/news/voting-rights-case-has-texas-implications/nWZTf/>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Regional Differences in Racial Polarization in the 2012
Presidential Election: Implications for the Constitutionality of
Section 5 the Voting Rights Act" <http://electionlawblog.org/?p=47673>
Posted on February 25, 2013 7:13 pm
<http://electionlawblog.org/?p=47673> by Rick Hasen
<http://electionlawblog.org/?author=3>
Nate Persily, Charles Stewart III, and Steve Ansolabehere have written
an important new paper,
<http://electionlawblog.org/wp-content/uploads/PERSILY-Racial-Polarization-in-Recent-Presidential-Elections.pdf>
which I have now posted. The paper comes just in time for argument in
the /Shelby County /case. Here is the introduction (minus the footnotes):
Three years ago, when the Supreme Court last considered the
constitutionality of the coverage formula of Section 5 of the Voting
Rights Act, we submitted an amicus brief on behalf of neither party
analyzing the relevance to the case of voting patterns in the 2008
election.1 In particular, the brief and a subsequent Harvard Law
Review article that expanded upon it,2 highlighted relative rates of
racially polarized voting in the covered and noncovered
jurisdictions to demonstrate where racial polarization had increased
over time. Although some states had improved and others worsened in
the gap in candidate preferences between racial groups, the brief
and article concluded that, contrary to much conventional wisdom,
racial polarization had actually increased in the 2008 election,
especially in the areas covered by section 5 of the VRA.
We find ourselves in much the same position now as we did three
years ago. We also find ourselves coming to the same conclusions,
which have become, if anything, more strongly supported by recent
data. Voting in the covered jurisdictions has become even more
polarized over the last four years, as the gap between whites and
racial minorities has continued to grow. This is due both to a
decline among whites and an increase among minorities in supporting
President Obama's reelection. This gap is not the result of mere
partisanship, for even when controlling for partisan identification,
race is a statistically significant predictor of vote choice,
especially in the covered states.
Moreso now than four years ago, both sides in the VRA debate look to
the 2012 election to support their case. Critics of the VRA point to
the reelection of the nation's first African American president,
amidst record rates of minority voter turnout, as evidence of how
"times have changed" since 1965. The "strong medicine" of the VRA is
no longer needed in the South,3 they argue, because the historic
barriers to minority participation and office holding have largely
vanished. For supporters of the VRA, the history since 1965 and the
1982 reauthorization demonstrate the continuing danger to minority
voting rights in the covered jurisdictions. They point also to this
past election as confirming Congress's suspicions in the
reauthorization process as new obstacles to voting, such as photo
identification laws and restrictions on early voting, were more
prevalent in the covered states. In the run up to the 2012 election,
section 5 proved it had bite, as photo ID and other laws were
prevented from going into effect by the DOJ or the District Court in
Texas, South Carolina, and Florida, and Texas's congressional
redistricting plan was found to be intentionally discriminatory.
These contrasting views of the relevance of the 2012 election may
very well provide the media frame for the debate over section 5 in
the current challenge to the VRA in Shelby County v. Holder. Of
course, the contending narratives of -- "look how far we've come"
versus "see how much voting discrimination persists" -- are usually
not the stuff of constitutional arguments. Moreover, the results of
a highly salient and well-funded presidential election may seem
beside the point for the constitutionality of a law that has its
greatest effect in the context of local, below-the-radar, election
law changes.
All involved in the debate over the VRA must admit, however, that we
do not know exactly what the world will look like if section 5 is
struck down. Of course, the South would not revert back to Jim Crow
days: politics has evolved beyond the days of threatened lynchings
for the exercise of the franchise. But the many examples in the
legislative record of voting rights violations prevented by the VRA
hint at what might happen if the covered jurisdictions were
otherwise unconstrained. Even if Jim Crow will not return, the
familiar regional pattern of discrimination might, as new stratagems
replace old ones with minority voters becoming collateral damage in
increasingly vicious partisan fights.
The litigants in the Shelby County case disagree over the applicable
constitutional test and the necessary evidentiary showing for
upholding the VRA. In particular, the challengers assert that
Congress needed to distinguish the covered from the noncovered
jurisdictions, in order to demonstrate that the coverage formula
captures the areas of the country (and only those areas) that pose
the greatest threat to minority voting rights. From their
perspective, the coverage formula can only be "congruent and
proportional"4 (and therefore constitutional) if it is precisely
tailored to capture only "guilty" jurisdictions and no "innocent" ones.
Although defenders of the VRA point to higher rates of successful
section 2 VRA cases as one example of where the covered states have
distinguished themselves as voting rights iolators, they also
maintain that Congress need only justify continued coverage by
finding persistent dangers to voting rights in covered areas alone.
The coverage formula, from its inception, has always been over and
underinclusive of the jurisdictions of concern. Overinclusivity is
addressed by the bailout provision, which allows "good"
jurisdictions to escape coverage when they can demonstrate a clean
voting rights record. So long as the coverage-formula-plus-bailout
regime represents a rational attempt to address the problem of
minority voting rights violations, defenders argue, the law is
constitutional.
The challengers' argument against the coverage formula would put
Congress in an awkward position whenever justifying a geographically
specific civil rights law. If the covered jurisdictions remain
completely unchanged in their disrespect for minority voting rights,
then the VRA is not working as promised. On the other hand,
successful deterrence of voting rights violations in the covered
states becomes evidence of its unconstitutionality if those
jurisdictions become less distinct. In the oral argument in NAMUDNO,
Chief Justice John Roberts described this problem as "the Elephant
Whistle problem." To summarize the allegory: A guy with a whistle
around his neck walks into a bar. Another guy asks him, "why are you
wearing a whistle around your neck?" "It's to keep away elephants,"
the first responds. "How do you know it's working?" the second asks.
"Do you see any elephants around here?"
If the Court takes the elephant whistle problem seriously, the
challenge for defenders of the VRA is to find a metric that can hint
at the danger of the VRA's removal while simultaneously not
suggesting it either has been ineffective or has outlived its
usefulness. To some extent, the number of preclearance denials and
DOJ requests for more information can do this by pointing at the
types of laws that would have gone into effect but for the existence
of the VRA. But even those data are incomplete because they cannot
pick up the VRA's deterrent effect -- that is, the laws that were
never proposed or passed because politicians knew they would not be
allowed to go into effect. We should expect the number of laws
denied preclearance to be small as compared to the number of laws
that are never passed because of the VRA's deterrent effect.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Making Sure Race is Considered" <http://electionlawblog.org/?p=47670>
Posted on February 25, 2013 2:59 pm
<http://electionlawblog.org/?p=47670> by Rick Hasen
<http://electionlawblog.org/?author=3>
Janai Nelson has written this contribution
<http://blogs.reuters.com/great-debate/2013/02/25/making-sure-race-is-considered/>
for the Reuters symposium
<http://www.reuters.com/subjects/voting-rights> on /Shelby County/:
"Section 5, however, has changed the discourse around race in backrooms
and in courtrooms by requiring that electoral decision-makers are not
only aware of race but also are conscious of the racial impact of their
actions and avoid racial harm. Indeed, Section 5's anti-retrogression
standard directs jurisdictions subject to oversight either to advance
or, at minimum, protect minority voting rights. This framework also
informs the voting rights discourse beyond Section 5 --- suggesting that
the only right direction to move on racial equality in elections is
forward."
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Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
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"The Invention of Voting Machines"
<http://electionlawblog.org/?p=47667>
Posted on February 25, 2013 2:24 pm
<http://electionlawblog.org/?p=47667> by Rick Hasen
<http://electionlawblog.org/?author=3>
Wendy Underhill blogs.
<http://ncsl.typepad.com/the_thicket/2013/02/the-invention-of-voting-machines.html>
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Posted in election administration <http://electionlawblog.org/?cat=18>,
voting technology <http://electionlawblog.org/?cat=40> | Comments Off
"Experts Debate Effects of Voting Rights Act Provision on Native
Americans" <http://electionlawblog.org/?p=47664>
Posted on February 25, 2013 2:22 pm
<http://electionlawblog.org/?p=47664> by Rick Hasen
<http://electionlawblog.org/?author=3>
BLT reports
<http://legaltimes.typepad.com/blt/2013/02/panel-debates-effects-of-voting-rights-act-provision-on-native-americans.html>.
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Voting Rights Act Case Draws Slew of Amicus Briefs"
<http://electionlawblog.org/?p=47662>
Posted on February 25, 2013 2:21 pm
<http://electionlawblog.org/?p=47662> by Rick Hasen
<http://electionlawblog.org/?author=3>
NLJ reports <http://www.law.com/jsp/nlj/PubArticleSCI.jsp?id=1202589509786>.
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Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
"The Voting Rights Act: On Strategic Compromise and As-Applied
Challenges" <http://electionlawblog.org/?p=47660>
Posted on February 25, 2013 2:19 pm
<http://electionlawblog.org/?p=47660> by Rick Hasen
<http://electionlawblog.org/?author=3>
Josh Douglas blogs.
<http://prawfsblawg.blogs.com/prawfsblawg/2013/02/the-voting-rights-act-on-strategic-compromise-and-as-applied-challenges.html>
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Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Hacking the Papal Vote? <http://electionlawblog.org/?p=47657>
Posted on February 25, 2013 2:16 pm
<http://electionlawblog.org/?p=47657> by Rick Hasen
<http://electionlawblog.org/?author=3>
Interesting CNN report
<http://www.cnn.com/2013/02/20/opinion/schneier-papal-election-secure/index.html?iid=article_sidebar>.
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Posted in chicanery <http://electionlawblog.org/?cat=12>, voting
technology <http://electionlawblog.org/?cat=40> | 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 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
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