[EL] section 5 in trouble

[Michael McDonald]

Of course, we are really talking about the Section 4 coverage formula being
at risk. In the shameless plug department, see:

Michael P. McDonald. 2006. "Who's Covered?  Section 4 Coverage Formula and
Bailout" in The Future of the Voting Rights Act, David Epstein, Richard H.
Pildes, Rodolfo O. de la Garza, and Sharyn O'Halloran, eds.  New York, NY:
Russell Sage Publications.

If the Section 4 coverage formula is stuck down, I wonder if that would
include exempting the jurisdictions that have been opted-in to Section 5
through Section 2 litigation. And if not, how would the Court square that
some of the jurisdictions that were covered by the formula might have been
opted-in to coverage in Section 2 litigation that would have been brought in
the absence of the formula? Jurisdictions that were denied Section 5
preclearance might make good candidates for such litigation.

============
Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu               
web:     http://elections.gmu.edu
twitter: @ElectProject

From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick
Hasen
Sent: Wednesday, February 27, 2013 11:11 AM
To: law-election at UCI.edu; law-legislation at uci.edu
Subject: Re: [EL] section 5 in trouble

Tom Goldstein gives a bit more context for the tweet here:

http://www.scotusblog.com/2013/02/from-the-shelby-county-argument/

On 2/27/13 8:00 AM, Rick Hasen wrote:
Early Report from Oral Argument: Not Looking Good for Section 5 
Posted on February 27, 2013 7:58 am by Rick Hasen 
SCOTUSBLOG tweet: "Update from argument: VRA Sec 5 almost sure to be
invalidated 5-4. Congress will have to reconsider the preclearance formula."
As Adam Liptak reminded us last night "Many predicted that the court would
strike down Section 5 in 2009, and they were wrong. Observers who make the
same prediction today may suffer the same fate. But evidence suggests that
the court's five more conservative members may be prepared to take on at
least one aspect of the law.They could stop short of striking down Section 5
itself. But if they say only that the current coverage formula must end,
sending the question back to Congress, that would almost certainly have the
practical effect in the current climate of legislative gridlock of striking
down the section altogether."
Yup. They can hide behind the fig leaf of just striking down the coverage
formula, as I suggested they'd do in this Reuters piece. But the practical
effect is to end section 5.

Posted in Supreme Court, Voting Rights Act | 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


-- 
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