[EL] racial stereotyping & coverage formulas

Fri Jul 19 10:01:16 PDT 2013

In response to Mark's question below:

The measure of racial stereotyping that Doug and I rely on is probably distorted to some extent by social desirability biases (but it is derived from on-line surveys, which are less susceptible to social desirability bias than in-person surveys).  It does predict political preferences, e.g., whether the respondent voted for Obama or a white candidate in the 2008 Democratic primary; whether the respondent voted for Kerry in 2004 but not for Obama in 2008; whether the respondent voted for McCain over Obama in the 2008 general election, controlling for ideology, partisanship, and region.  The correlation with political preferences is especially large among people who are in the top 10% by anti-black stereotyping; it is absent among people who subscribe to positive rather than negative views of blacks.

The question for me is not whether this measure is perfect—it clearly is not—but whether there is anything better.

Doug and I agree that it would make sense for a coverage formula to take account of racially polarized voting and minority population size, as well as racial stereotyping.  But as we show in the paper, all three criteria lead to very similar conclusions about which states should be covered, at least with respect to African Americans.  And the states that should be covered are basically the states that were covered under the "outdated" formula that Shelby County invalidated.  (See figures 6 and 7 on pages 40-41.)

Best,

Chris

Christopher S. Elmendorf
Professor of Law
UC Davis School of Law
400 Mrak Hall Drive
Davis, CA 95616
530.752.5756

From: <Scarberry>, Mark Scarberry <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
Reply-To: Mark Scarberry <Mark.Scarberry at pepperdine.edu<mailto:Mark.Scarberry at pepperdine.edu>>
Date: Friday, July 19, 2013 9:06 AM
To: rick hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>, "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: Re: [EL] ELB News and Commentary 7/19/13

On the racial stereotyping study approach to setting preclearance areas: if I remember correctly, my reaction to a study I saw quite a while ago was that it was likely measuring attitudes that might have little to do with racial discrimination or animus. How confident should we be that the studies are sound? And are attitudes of voters good proxies for likely violations the14th am, when not combined with other factors? Gingles, for example, uses a multi-factor analysis for a somewhat analogous issue, right?

Mark Scarberry

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
Date: 07/19/2013 8:07 AM (GMT-08:00)
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: [EL] ELB News and Commentary 7/19/13

Today at Noon Pacific: UCI SCOTUS Term in Review Event: LIVE WEBCAST<http://electionlawblog.org/?p=53222>
Posted onJuly 19, 2013 8:04 am<http://electionlawblog.org/?p=53222>by Rick Hasen<http://electionlawblog.org/?author=3>

3rd Annual Supreme Court Term in Review<http://www.law.uci.edu/events/supreme-court-term-review/2013.html>

Friday, July 19, 2013 – 12:00 – 1:30 P.M.
UCI Student Center, Crystal Cove Auditorium (Map<http://www.studentcenter.uci.edu/files/map-directions-sc.pdf>)

This exciting and entertaining program reviews the Supreme Court’s key cases decided in the October 2012 term, with an all-star panel of Supreme Court journalists and academics.

VIEW THE LIVE WEBCAST ><http://cast.oit.uci.edu/tltc/webstream1/2013_Law.html>

Panelists

  *   Mario Barnes<http://www.law.uci.edu/faculty/full-time/barnes/index.html>, UCI Law
  *   Joan Biskupic<http://blogs.reuters.com/joan-biskupic/>, Reuters
  *   Erwin Chemerinsky<http://www.law.uci.edu/faculty/full-time/chemerinsky/index.html>, UCI Law
  *   Miguel Estrada<http://www.gibsondunn.com/lawyers/mestrada>, Gibson Dunn (DC office)
  *   Adam Liptak<http://www.nytimes.com/ref/us/bio-liptak.html>, New York Times
  *   Doug NeJaime<http://www.law.uci.edu/faculty/full-time/nejaime/index.html>, UCI Law
  *   Moderated by Rick Hasen<http://www.law.uci.edu/faculty/full-time/hasen/index.html>, UCI Law

CLE credit will be available. The event will also be webcast, with viewers able to submit questions via Twitter, using the hash tag #ucilawscotus at the end of your question.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29> | Comments Off
Revised Elmendorf and Spencer Paper Proposing New Coverage Standard for Voting Rights Act<http://electionlawblog.org/?p=53219>
Posted onJuly 19, 2013 7:59 am<http://electionlawblog.org/?p=53219>by Rick Hasen<http://electionlawblog.org/?author=3>

The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262954>

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act (VRA). The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible coverage approach based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and vote accordingly. The new coverage formula could also account for racially polarized voting and minority population size, but, for constitutional reasons, subjective discrimination by voters is the essential criterion. We demonstrate that the racial-stereotyping, polarized-voting, and population-size criteria would yield similar patterns of coverage, at least with respect to African Americans, and we show, ironically, that the new pattern of coverage would coincide with historic coverage under the “outdated” formula invalidated by Shelby County. Recently developed statistical techniques permit the new coverage formula to be further refined based on estimates of racial stereotyping within sub-state geographic units, such as cities and counties. We suggest that Congress establish default rules for coverage based on our state-level results, and delegate authority to make sub-state coverage determinations to an administrative agency, along with other responsibilities for keeping the coverage formula up to date.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Reform Groups Urge FEC Commissioners Not to Take Action on Proposed Enforcement Manual Changes”<http://electionlawblog.org/?p=53217>
Posted onJuly 19, 2013 7:56 am<http://electionlawblog.org/?p=53217>by Rick Hasen<http://electionlawblog.org/?author=3>

See here.<http://www.democracy21.org/money-in-politics/letters-to-the-fec/reform-groups-urge-fec-commissioners-not-to-take-action-on-proposed-enforcement-manual-changes/>

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Posted in federal election commission<http://electionlawblog.org/?cat=24> |Comments Off
CCP Files Amicus Brief in Ring Case<http://electionlawblog.org/?p=53215>
Posted onJuly 19, 2013 7:56 am<http://electionlawblog.org/?p=53215>by Rick Hasen<http://electionlawblog.org/?author=3>

See this press release<http://www.campaignfreedom.org/2013/07/19/brief-vague-criminal-laws-threaten-first-amendment-3/>.

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Posted in bribery<http://electionlawblog.org/?cat=54>, campaign finance<http://electionlawblog.org/?cat=10> | Comments Off
“Lawmakers Consider Retooling Voting Rights Act”<http://electionlawblog.org/?p=53213>
Posted onJuly 19, 2013 7:54 am<http://electionlawblog.org/?p=53213>by Rick Hasen<http://electionlawblog.org/?author=3>

NPR reports<http://www.npr.org/templates/story/story.php?storyId=203531582>.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Congress divided on voting rights fix”<http://electionlawblog.org/?p=53211>
Posted onJuly 19, 2013 7:53 am<http://electionlawblog.org/?p=53211>by Rick Hasen<http://electionlawblog.org/?author=3>

Gannett reports.<http://www.greenvilleonline.com/article/20130719/NEWS/307190007>

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Voter ID On Trial: An Update From the Capitol”<http://electionlawblog.org/?p=53208>
Posted onJuly 18, 2013 8:46 pm<http://electionlawblog.org/?p=53208>by Rick Hasen<http://electionlawblog.org/?author=3>

WESA audio report:<http://wesa.fm/post/voter-id-trial-update-capitol>

Pennsylvania’s controversial voter ID law has come back to trial in the Commonwealth court, and both sides are making serious plays.  WITF<http://www.witf.org/>’s  capital reporter Mary Wilson says the first few days of testimony were brimming with testimony from those challenging the laws, but talk of voter fraud — one of the issues legislators emphasized most when passing the law — was surprisingly limited.

Thus far the cases made against the law have been more or less the same as the ones used to fight it from the outset. Wilson says those challenging the law are using a blend of statistical data and testimonies to make the claim that specific groups — such as elderly and minority voters — will be disenfranchised by the law.

However, Wilson observes that while proponents argued that the law would prevent voter fraud when it was originally passed, “we’re seeing the state back away from that.” Instead, she says the state has said that the law will improve voters’ confidence in the electoral process.

By the way, the case for voter id laws being correlated with voter confidence is exceedingly weak<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1099056>.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
Pa. Republican Party Chair Says Voter ID Controversy Helped GOP in 2012<http://electionlawblog.org/?p=53204>
Posted onJuly 18, 2013 8:29 pm<http://electionlawblog.org/?p=53204>by Rick Hasen<http://electionlawblog.org/?author=3>

See this report<http://tribune-democrat.com/latestnews/x1724756869/Voter-ID-ado-aided-GOP-Gleason-says>. As with the Mike Turzai comments, Democrats are citing these comments as evidence that Republicans intend the law to suppress Democratic votes; Republicans sharply disagree.

Bonus: Story at top of same page:

VIDEO: Man wrestles shark on Mass. beach<http://tribune-democrat.com/latestnews/x1538944503/VIDEO-Man-wrestles-shark-on-Mass-beach>

A fisherman wrestles a 7-foot long, 200-pound shark onto shore in Nantucket, Mass., then releases it.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
Two FairVote Reports<http://electionlawblog.org/?p=53201>
Posted onJuly 18, 2013 8:18 pm<http://electionlawblog.org/?p=53201>by Rick Hasen<http://electionlawblog.org/?author=3>

Top Two in Washington State<http://www.fairvote.org/top-two-in-washington-state#.Ueiu01O9zh1> and Federal Primary Runoff Elections and Voter Turnout Declines, 1994 – 2012<http://www.fairvote.org/federal-primary-runoff-elections-and-voter-turnout-declines-1994-201#.UeivFlO9zh1>.

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Posted in political parties<http://electionlawblog.org/?cat=25>, primaries<http://electionlawblog.org/?cat=32> | Comments Off
“Did Supreme Court rob Alaska Natives of their voice?”<http://electionlawblog.org/?p=53198>
Posted onJuly 18, 2013 8:11 pm<http://electionlawblog.org/?p=53198>by Rick Hasen<http://electionlawblog.org/?author=3>

Mary Lochner opines.<http://www.anchoragepress.com/news/did-supreme-court-rob-alaska-natives-of-their-voice/article_ec89f328-ef58-11e2-8b4b-001a4bcf887a.html>

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Key date for test of voting law’s preclearance requirement”<http://electionlawblog.org/?p=53195>
Posted onJuly 18, 2013 8:08 pm<http://electionlawblog.org/?p=53195>by Rick Hasen<http://electionlawblog.org/?author=3>

Lyle Denniston<http://www.scotusblog.com/2013/07/key-date-for-test-of-voting-laws-preclearance-requirement/>:

A key date — July 26 — has now been set for a test of the Obama administration’s view on a legal mechanism for continuing to protect minority voters against discrimination at the polls — including court review of new election laws before they go into effect.  The mechanism potentially could allow the government to salvage something very significant from its defeat in the Supreme Court’s ruling last month on the Voting Rights Act of 1965, in the case of Shelby County v. Holder<http://www.bloomberglaw.com/public/document/Shelby_Cnty_v_Holder_No_1296_2013_BL_167707_US_June_25_2013_Court/3>.

The mechanism is the 1965 law’s Section 3.  Under that provision, if a state or local jurisdiction has a recent history of racial discrimination in its elections, a court can order it to get official clearance in Washington before it can implement changes in its voting laws or methods.  This is known as the statute’s “bail in” mechanism.  The so-called “preclearance” process — for decades a very successful way to protect minority voters’ rights – comes under the law’s Section 5, and both Sections 3 and 5 are at least technically intact even after the Shelby County decision.

The state of Texas has insisted that it has now come out from under Section 5, as a result of that ruling, but that claim is now being challenged in a lower-court case over new redistricting maps for the Texas legislature and the state’s delegation in the House of Representatives.  And it is that case on which the Justice Department’s views about Section 3 are to be filed by a week from tomorrow, under an order issued this week by a three-judge district court in Washington.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Colo. judge won’t block recalls over gun votes”<http://electionlawblog.org/?p=53192>
Posted onJuly 18, 2013 3:30 pm<http://electionlawblog.org/?p=53192>by Rick Hasen<http://electionlawblog.org/?author=3>

AP reports<http://www.salon.com/2013/07/18/colo_judge_wont_block_recalls_over_gun_votes/>.  Sounds like application of the Democracy Canon.

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Posted in recall elections<http://electionlawblog.org/?cat=11> | Comments Off
“Republican Who Tossed Voter Registration Forms Let Off The Hook”<http://electionlawblog.org/?p=53188>
Posted onJuly 18, 2013 3:12 pm<http://electionlawblog.org/?p=53188>by Rick Hasen<http://electionlawblog.org/?author=3>

Ryan Reilly<http://www.huffingtonpost.com/2013/07/18/colin-small-gop_n_3619396.html?utm_hp_ref=tw>:

The young Republican who grabbed national headlines after being arrested for throwing voter registration forms<http://www.huffingtonpost.com/2012/10/19/reince-priebus-rnc-consultant-voter-fraud_n_1988619.html> into a dumpster before the 2012 election won’t be facing any legal consequences.

A judge in Virginia dropped<http://www.washingtonpost.com/local/judge-dismisses-charges-against-pa-man-accused-of-throwing-away-va-voter-registration-forms/2013/07/17/12453720-eefb-11e2-bb32-725c8351a69e_story.html> several misdemeanor charges against Colin Small on Wednesday, meaning the 23-year-old will not face any penalties for discarding a number of voter registration forms. Felony charges were dropped<http://www.huffingtonpost.com/2013/04/02/colin-small-voter-fraud_n_3001802.html> back in April, but Small was still facing five misdemeanor counts until this week.

And there’s this:

The experience has left Small’s family skeptical of the judicial system, Holloran said.

“They’re not from the hood, where you go ‘hey man, don’t deal with the man, the cops don’t play it straight up and don’t trust prosecutors.’ They trust cops and they trust prosecutors because they believe they’re going to do justice. It’s a very difficult education for them,” Holloran said.

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Posted in chicanery<http://electionlawblog.org/?cat=12>, The Voting Wars<http://electionlawblog.org/?cat=60>, voter registration<http://electionlawblog.org/?cat=37> |Comments Off
New Project Vote White Paper on Interstate Matching Programs for Voter Registration<http://electionlawblog.org/?p=53185>
Posted onJuly 18, 2013 1:46 pm<http://electionlawblog.org/?p=53185>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://projectvote.org/images/publications/Voter%20Lists/POLICY-PAPER-Interstate-Matching-Programs-July-2013.pdf>.

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Posted in voter registration<http://electionlawblog.org/?cat=37> |Comments Off
“On Voting Rights, Discouraging Signs From the Hill”<http://electionlawblog.org/?p=53182>
Posted onJuly 18, 2013 1:40 pm<http://electionlawblog.org/?p=53182>by Rick Hasen<http://electionlawblog.org/?author=3>

Andrew Cohen gets pessimistic<http://www.theatlantic.com/national/archive/2013/07/on-voting-rights-discouraging-signs-from-the-hill/277894/>.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Josh Blackman: Justice Stevens Neglects to Mention He Signed NAMUDNO, Which Paved the Way for Shelby County<http://electionlawblog.org/?p=53180>
Posted onJuly 18, 2013 1:40 pm<http://electionlawblog.org/?p=53180>by Rick Hasen<http://electionlawblog.org/?author=3>

He writes<http://joshblackman.com/blog/2013/07/18/justice-stevens-rehabilitation-tour-pulls-into-shelby-county/>:

And this part is too rich. Stevens critically references an opinion Roberts wrote–NAMUDNO–that Stevens joined!

The Court’s heavy reliance on the importance of a “fundamental principle ofequal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states.

Those time bombs with long fuses<http://joshblackman.com/blog/2013/06/27/the-supreme-courts-time-bomb-with-a-very-long-fuse/> can catch up on you, huh JPS.

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Posted in Uncategorized<http://electionlawblog.org/?cat=1> | Comments Off
2013 Election Law Casebook Supplement Now Available<http://electionlawblog.org/?p=53174>
Posted onJuly 18, 2013 1:29 pm<http://electionlawblog.org/?p=53174>by Rick Hasen<http://electionlawblog.org/?author=3>

The 2013 Supplement to Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials<http://www.cap-press.com/books/isbn/9781611631784/Election-Law-Fifth-Edition> (5th ed. 2013), is now available for download at this link:

http://electionlawblog.org/wp-content/uploads/2013-supp-final.pdf

The Supplement is up-to-date, and includes edited versions of Shelby County v. Holder, ATP v. Bullock, and McCutcheon v. FEC, along with extensive notes on the future of the Voting Rights Act, the upcoming Supreme Court consideration of McCutcheon, the IRS Mess, money and election administration issues in the 2012 elections, developments in bribery and campaign law, and much more.
The cover of the Supplement reads: “Permission is hereby granted to instructors assigning the Lowenstein, Hasen, and Tokaji casebook to distribute this Supplement free of charge to students who have purchased the casebook. All other redistribution is prohibited without the permission of the authors.”
For more information about the casebook, or if you are professor wishing to use the book in the fall and you need a Teacher’s Manual, contact Carolina Academic Press<http://www.caplaw.com/contacts>.

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Posted in pedagogy<http://electionlawblog.org/?cat=23> | Comments Off
“Conservatives not keen on effort to revise key section of Voting Rights Act”<http://electionlawblog.org/?p=53170>
Posted onJuly 18, 2013 12:32 pm<http://electionlawblog.org/?p=53170>by Rick Hasen<http://electionlawblog.org/?author=3>

Tom Curry reports<http://nbcpolitics.nbcnews.com/_news/2013/07/18/.UehCE39z6WM.twitter> for NBC News.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Some Republicans quietly cheer end of voting rights act”<http://electionlawblog.org/?p=53167>
Posted onJuly 18, 2013 12:27 pm<http://electionlawblog.org/?p=53167>by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Melber writes<http://tv.msnbc.com/2013/07/18/republican-hearing-confronts-voting-rights-act/>.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“North Carolina Republicans Push Harsh New Voter ID Law”<http://electionlawblog.org/?p=53164>
Posted onJuly 18, 2013 12:24 pm<http://electionlawblog.org/?p=53164>by Rick Hasen<http://electionlawblog.org/?author=3>

Ari Berman writes<http://www.thenation.com/blog/175345/north-carolina-republicans-push-harsh-new-voter-id-law#axzz2ZKoj8bAx>.

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Posted in The Voting Wars<http://electionlawblog.org/?cat=60>, voter id<http://electionlawblog.org/?cat=9> | Comments Off
“The Court & the Right to Vote: A Dissent”<http://electionlawblog.org/?p=53161>
Posted onJuly 18, 2013 12:21 pm<http://electionlawblog.org/?p=53161>by Rick Hasen<http://electionlawblog.org/?author=3>

Must-read review<http://www.nybooks.com/articles/archives/2013/aug/15/the-court-right-to-vote-dissent/?pagination=false#.Ueg8z-7i4zA.twitter> by Justice Stevens of Gary May’s new book<http://www.amazon.com/gp/product/0465018467?ie=UTF8&tag=thneyoreofbo-20&linkCode=as2&camp=1789&creative=9325&creativeASIN=0465018467> on the Voting Rights Act. While partially a review of May’s book, it is also an endorsement of Justice Ginsburg’s dissent, and critique of the Chief Justice’s majority opinion, in the Shelby County case striking down a key part of the Voting Rights Act.

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Posted in Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
FairVote Collecting Links of Written Testimony Submitted on Fixing Voting Rights Act<http://electionlawblog.org/?p=53158>
Posted onJuly 18, 2013 11:18 am<http://electionlawblog.org/?p=53158>by Rick Hasen<http://electionlawblog.org/?author=3>

Here<http://www.fairvote.org/testimony-on-importance-of-strong-voting-rights-act/#.UegxL1Md43b>.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
“Watchdog ‘Disturbed’ IRS Withheld New Documents Showing Progressive Groups May Have Been Targeted Too”<http://electionlawblog.org/?p=53155>
Posted onJuly 18, 2013 11:01 am<http://electionlawblog.org/?p=53155>by Rick Hasen<http://electionlawblog.org/?author=3>

AP<http://talkingpointsmemo.com/news/watchdog-disturbed-irs-withheld-new-documents-showing-progressive-groups-may-have-been-targeted-too.php>:

The investigator who wrote a scathing report about the Internal Revenue Service targeting tea party groups says he is “disturbed” the agency withheld newly-released documents showing progressive groups may also have been singled out for additional scrutiny.

In prepared testimony, J. Russell George told a congressional panel Thursday the IRS did not provide the documents to his office during a yearlong audit. George said he just received the documents last week.

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Posted in campaign finance<http://electionlawblog.org/?cat=10>, tax law and election law<http://electionlawblog.org/?cat=22> | Comments Off
“Many Republican no-shows on VRA”<http://electionlawblog.org/?p=53152>
Posted onJuly 18, 2013 10:41 am<http://electionlawblog.org/?p=53152>by Rick Hasen<http://electionlawblog.org/?author=3>

Politico<http://www.politico.com/story/2013/07/many-republican-no-shows-on-vra-94383.html?utm_source=buffer&utm_campaign=Buffer&utm_content=buffer34b50&utm_medium=twitter>:

Republicans on the Senate Judiciary Committee were mostly no-shows at Wednesday’s high-profile hearing on restoring a portion of the Voting Rights Act struck down by the Supreme Court last month.

The Republicans chalked up their absence to scheduling confusion.

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
Ari Berman on Today’s House VRA Hearing<http://electionlawblog.org/?p=53148>
Posted onJuly 18, 2013 10:38 am<http://electionlawblog.org/?p=53148>by Rick Hasen<http://electionlawblog.org/?author=3>

He’s pessimistic <http://www.thenation.com/blog/175336/rep-john-lewis-voting-rights-act-needed-now-never#> (scroll down to Update).

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Posted in Voting Rights Act<http://electionlawblog.org/?cat=15> | Comments Off
--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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