[EL] more news 7/25/13
Rick Hasen
rhasen at law.uci.edu
Thu Jul 25 12:12:59 PDT 2013
"NC Senate approves GOP-backed election changes"
<http://electionlawblog.org/?p=53461>
Posted on July 25, 2013 12:08 pm <http://electionlawblog.org/?p=53461>
by Rick Hasen <http://electionlawblog.org/?author=3>
AP:
<http://www.mysanantonio.com/news/article/NC-Senate-approves-GOP-backed-election-changes-4685055.php>
The Republican-dominated North Carolina Senate
<http://www.mysanantonio.com/?controllerName=search&action=search&channel=news&search=1&inlineLink=1&query=%22North+Carolina+Senate%22>
gave preliminary approval Wednesday to sweeping election law
changes, including requiring voters to present photo ID at the polls
and shortening early voting by a week.
The bill was approved in a 32-14 party-line vote following three
hours of debate. Among the bill's 57 pages of provisions are
measures ending same-day voter registration and a popular high
school civics program that encourages students to register in
advance of their 18th birthdays.
As I just told a reporter, this North Carolina measure is the most
sweeping anti-voter law in at least decades. I'm not big on using the
term "voter suppression," which I think is overused and often
inaccurate, but it is hard to see this law as justified on anti-fraud,
public confidence, or efficiency grounds. The intent here is to make it
harder for people---especially non-white people and those likely to vote
Democratic--to register or cast a vote that will be counted. It also
makes money matter more in North Carolina politics and kills public
financing of the North Carolina courts.
North Carolina is well on its way to becoming the next Florida
<http://www.thedailybeast.com/articles/2013/07/24/will-the-gop-s-north-carolina-end-run-backfire.html>.
If only there were a law that would stop such a provision from going
into effect until someone determined the law would not hurt minority
voters. Oh wait
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>...
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53461&title=%E2%80%9CNC%20Senate%20approves%20GOP-backed%20election%20changes%E2%80%9D&description=>
Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Elmendorf and Spencer: "New Tools for 'Bail In': Using the Geography
of Discrimination to Reconstruct VRA Preclearance, Judicially"
<http://electionlawblog.org/?p=53458>
Posted on July 25, 2013 11:57 am <http://electionlawblog.org/?p=53458>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here's a guest post from Chris Elmendorf and Doug Spencer:
*New Tools for "Bail In": Using the Geography of Discrimination to
Reconstruct VRA Preclearance, Judicially*
* Chris Elmendorf, UC Davis School of Law*
*Doug Spencer, University of Connecticut School of Law*
*July 25, 2013*
Today's announcement
<http://www.nytimes.com/2013/07/26/us/holder-wants-texas-to-clear-voting-changes-with-the-us.html>
by Attorney General Holder that the United States will seek judicial
imposition of Voting Rights Act preclearance on the state of Texas
is just the latest signal that previously obscure "Section 3" will
take center stage in voting rights litigation after /Shelby
County/. Section 3 of the VRA expands the set of available remedies
for unconstitutional race discrimination with respect to voting. It
permits federal courts not simply to enjoin the practice found
unconstitutional, but also to compel the defendant state or
political subdivision to pre-clear future election law changes with
the court or the Department of Justice.
There are, however, two large hurdles to reconstructing some
semblance of the pre- /Shelby County /preclearance regime through
Section 3 litigation: (1) the difficulty of proving intentional race
discrimination, which is the only kind of race discrimination that
the 14^th and 15^th amendments prohibit and therefore a prerequisite
for bail-in remedies; (2) /Shelby County/'s warning that
preclearance is an "extraordinary" remedy justified only by
"exceptional" conditions.
We argue in this post (and in more detail in the latest version of
this paper
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262954>) that
both of these hurdles may be overcome with evidence concerning the
geography of racial stereotyping, racially polarized voting, and
minority population size. Racial stereotyping, racially polarized
voting, and large minority populations are risk factors for 14^th
and 15^th Amendment violations. And it turns out that states whose
non-black populations subscribe to exceptionally dim views of the
work effort, intelligence, and trustworthiness of African Americans
are also the states with the highest levels of racially polarized
voting, and the largest black populations (by share of total
population). These are also, by and large, the same states that
were subject to preclearance under the "outdated" coverage formula
invalidated by /Shelby County/.
Why does this matter for Section 3? Consider first the permissible
scope of bail-in remedies. Imagine that Texas's redistricting maps
are found to have violated the 14^th Amendment, and the court
believes that a bail-in remedy is appropriate. The court must then
decide how to delimit the remedy's geographic scope (does it apply
only to the State of Texas, or also to the state's political
subdivisions, such as cities and counties?); the remedy's topical
scope (does it apply only to redistricting, or to all "standards,
practices, and procedures" with respect to voting?); and the
remedy's temporal scope (how long will Texas be subject to
preclearance?).
/ Shelby County/'s characterization of preclearance as an
"extraordinary" remedy justified only by "exceptional" conditions
means that district courts will face considerable pressure---on pain
of reversal---to issue /narrow /bail-in remedies (or none at all),
unless plaintiffs make a compelling showing that conditions in the
state really do present an exceptional, unusual risk of 14^th and
15^th Amendment violations. But the very same arguments
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262954> that
would justify Congress basing a generic coverage formula on the
geography of racial stereotyping, racially polarized voting, and
minority population size would equally justify judicial reliance on
these factors for purposes of subjecting "exceptional" states to
broad bail-in remedies.
Now consider the liability-stage question of whether 14^th or 15^th
Amendment violations actually occurred. In ordinary constitutional
litigation, plaintiffs must prove it "more likely than not" that a
discrete state action violated the Constitution. In race
discrimination cases, this mean identifying a particular state actor
responsible for the objectionable action, and proving it more likely
than not that she or he acted for impermissible reasons. But for
purposes of bail-in remedies under Section 3, the requisite
"find[ing] [of] violations of the fourteenth or fifteenth amendment
justifying equitable relief" might be established rather differently.
Imagine that political subdivisions in the defendant state
independently undertook 100 somewhat suspicious actions, such as
redistricting that disadvantages a minority community. Or, if one
accepts Elmendorf's account of the electorate as a state actor
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1822642> for
certain purposes, imagine 100 separate elections in the defendant
jurisdiction, each with racially polarized voting. After tracing
the history of these state actions, and weighing information about
racial stereotyping, racially polarized voting, and minority
population size in the defendant jurisdiction, the court concludes
that the odds of an unconstitutional outcome are roughly 1 in 10 for
each occurrence of the state action (i.e., for each redistricting,
or each election outcome). Applying the "more likely than not"
standard, the court should further conclude /that at least nine
constitutional violations occurred/. It may be impossible to say
whether any one of the 100 state actions violated the Constitution,
but it follows from the laws of probability that the odds of at
least nine constitutional violations are bigger than 0.50.
Thus, the very same risk factors that may justify broad preclearance
remedies under Section 3 are also relevant at the initial liability
stage of a bail-in case. They are pertinent not because Section 3
relaxes the evidentiary standard for constitutional violations to
something looser than "more likely than not," but because the
Section 3 question is whether "violations . . . justifying equitable
relief" (in the form of bail-in) occurred, not whether /this/ or
/that/ state action should be enjoined because it was probably
unconstitutional. The threshold question in a Section 3
case---whether it is more likely than not that violations
occurred---will often have an affirmative answer if many state
actions took place, each with small positive probability of
violating the Constitution.
Of course, it doesn't follow that a bail-in remedy would be
justified. But at least the court will reach the bail-in question.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53458&title=Elmendorf%20and%20Spencer%3A%20%E2%80%9CNew%20Tools%20for%20%E2%80%98Bail%20In%E2%80%99%3A%20Using%20the%20Geography%20of%20Discrimination%20to%20Reconstruct%20VRA%20Preclearance%2C%20Judicially%E2%80%9D&description=>
Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Brennan Center Amicus Brief in McCutcheon Case
<http://electionlawblog.org/?p=53456>
Posted on July 25, 2013 11:54 am <http://electionlawblog.org/?p=53456>
by Rick Hasen <http://electionlawblog.org/?author=3>
Here
<http://signup.brennancenter.org/page/m/64f58a73/28892d4a/33b412a2/6d40e459/1852482623/VEsF/>.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53456&title=Brennan%20Center%20Amicus%20Brief%20in%20McCutcheon%20Case&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
"Preclearance Without Statutory Change: Bail-In Suits Post-Shelby
County" <http://electionlawblog.org/?p=53453>
Posted on July 25, 2013 11:52 am <http://electionlawblog.org/?p=53453>
by Rick Hasen <http://electionlawblog.org/?author=3>
Michael Element has posted this (extremely timely) draft
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2288248> on SSRN
(forthcoming /Yale Law and Policy Review Online/). Here is the abstract:
This short piece analyzes the potential for bail-in suits under
Section 3 of the Voting Rights Act, following the Supreme Court's
decision in Shelby County v. Holder. The bail-in process allows a
court, upon finding a voting rights violation of the Fourteenth or
Fifteenth amendments, to impose a system similar to the Section 5
preclearance structure on offending states. This piece argues that
voting rights advocates should be cautiously optimistic that Section
3 can fill the void left by the Court's decision to strike down the
Section 4 preclearance formula. It contends the bail-in provision is
superior to other statutory and policy alternatives for a number of
reasons, namely that it satisfies the constitutional requirements
laid out by the Shelby County Court for supervisory voting
legislation; is immediately available (eliminating the need for
statutory change); and, if utilized, represents the remedial option
closest to the previously enforced Section 5 preclearance structure.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53453&title=%E2%80%9CPreclearance%20Without%20Statutory%20Change%3A%20Bail-In%20Suits%20Post-Shelby%20County%E2%80%9D&description=>
Posted in Voting Rights Act <http://electionlawblog.org/?cat=15> |
Comments Off
Lessig/CAC File Amicus Brief in McCutcheon Case Pitching "Dependence
Corruption" Argument <http://electionlawblog.org/?p=53450>
Posted on July 25, 2013 11:46 am <http://electionlawblog.org/?p=53450>
by Rick Hasen <http://electionlawblog.org/?author=3>
Brief
<http://theusconstitution.org/sites/default/files/briefs/CAC-McCutcheon-v-FEC-Amicus-Brief.pdf>
Press release.
<http://theusconstitution.org/media/releases/framers%E2%80%99-view-corruption-what-supreme-court-should-know>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53450&title=Lessig%2FCAC%20File%20Amicus%20Brief%20in%20McCutcheon%20Case%20Pitching%20%E2%80%9CDependence%20Corruption%E2%80%9D%20Argument&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10> |
Comments Off
Will Baude on DOJ's Bail-In Announcement
<http://electionlawblog.org/?p=53447>
Posted on July 25, 2013 11:25 am <http://electionlawblog.org/?p=53447>
by Rick Hasen <http://electionlawblog.org/?author=3>
Baude <http://www.volokh.com/2013/07/25/doj-decides-to-mess-with-texas/>:
One thing I'd add, though: Hasen seems to assume that if Texas is
bailed in and the case goes to the Supreme Court, Justice Kennedy
will be the marginal vote. But supporters of bail-in might also want
to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent
<http://www.law.cornell.edu/supct/html/02-1667.ZD1.html>, he wrote:
For reasons of stare decisis, I shall henceforth apply the
permissive McCulloch standard to congressional measures designed to
remedy racial discrimination by the States. I would not, however,
abandon the requirement that Congress may impose prophylactic §5
legislation only upon those particular States in which there has
been an identified history of relevant constitutional violations.
... When those [and other] requirements have been met, however, I
shall leave it to Congress, under constraints no tighter than those
of the Necessary and Proper Clause, to decide what measures are
appropriate under §5 to prevent or remedy racial discrimination by
the States.
If DOJ can make a sufficient showing that "there has been an
identified history of relevant constitutional violations" in Texas,
they ought to get Justice Scalia's vote.
I wrote a lot about Justice Scalia's statement in Lane and its relevance
to the VRA in this piece
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=561241>. But my
sense from NAMUDNO and Shelby County is that the Justice has abandoned
those positions. (Remember the "Racial entitlement" talk?)
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53447&title=Will%20Baude%20on%20DOJ%E2%80%99s%20Bail-In%20Announcement&description=>
Posted in Supreme Court <http://electionlawblog.org/?cat=29>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
Scheduled to Be on "To the Point" <http://electionlawblog.org/?p=53444>
Posted on July 25, 2013 10:56 am <http://electionlawblog.org/?p=53444>
by Rick Hasen <http://electionlawblog.org/?author=3>
Talking bail-in, Texas, and the Voting Rights Act with the great
Madeline Brand (filling in for the great Warren Olney).
Listen <http://www.kcrw.com/news/programs/tp>.
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53444&title=Scheduled%20to%20Be%20on%20%E2%80%9CTo%20%20the%20Point%E2%80%9D&description=>
Posted in Uncategorized <http://electionlawblog.org/?cat=1> | Comments Off
Interview About Voting Rights and Campaign Finance on Stand Up! with
Pete Dominick <http://electionlawblog.org/?p=53441>
Posted on July 25, 2013 10:53 am <http://electionlawblog.org/?p=53441>
by Rick Hasen <http://electionlawblog.org/?author=3>
Listen
<http://www.law.uci.edu/news/in-the-news/2013/siriusxm_hasen_07-25-13.mp3>
(mp3).
I discuss *Three Wrong Progressive Approaches (and One Right One) to
Campaign Finance Reform*
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2293979>
and
*Shelby County and the Illusion of Minimalism*.
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291612>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53441&title=Interview%20About%20Voting%20Rights%20and%20Campaign%20Finance%20on%20Stand%20Up%21%20with%20Pete%20Dominick&description=>
Posted in campaign finance <http://electionlawblog.org/?cat=10>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"How North Carolina voter ID opponents are undermining a Voting
Rights Act defense" <http://electionlawblog.org/?p=53438>
Posted on July 25, 2013 10:21 am <http://electionlawblog.org/?p=53438>
by Rick Hasen <http://electionlawblog.org/?author=3>
Derek Muller blogs.
<http://excessofdemocracy.com/blog/2013/7/how-north-carolina-voter-id-opponents-are-undermining-a-voting-rights-act-defense>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53438&title=%E2%80%9CHow%20North%20Carolina%20voter%20ID%20opponents%20are%20undermining%20a%20Voting%20Rights%20Act%20defense%E2%80%9D&description=>
Posted in The Voting Wars <http://electionlawblog.org/?cat=60>, Voting
Rights Act <http://electionlawblog.org/?cat=15> | Comments Off
"Republicans vs. Democracy in North Carolina"
<http://electionlawblog.org/?p=53435>
Posted on July 25, 2013 10:19 am <http://electionlawblog.org/?p=53435>
by Rick Hasen <http://electionlawblog.org/?author=3>
The American Prospect reports.
<http://prospect.org/article/republicans-vs-democracy-north-carolina>
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53435&title=%E2%80%9CRepublicans%20vs.%20Democracy%20in%20North%20Carolina%E2%80%9D&description=>
Posted in The Voting Wars <http://electionlawblog.org/?cat=60> |
Comments Off
Bail In Coverage <http://electionlawblog.org/?p=53433>
Posted on July 25, 2013 10:17 am <http://electionlawblog.org/?p=53433>
by Rick Hasen <http://electionlawblog.org/?author=3>
New York Times
<http://www.nytimes.com/2013/07/26/us/holder-wants-texas-to-clear-voting-changes-with-the-us.html?pagewanted=2&_r=0&hp&pagewanted=all>
Washington Post
<http://www.washingtonpost.com/politics/justice-department-to-challenge-states-voting-rights-laws/2013/07/25/c26740b2-f49b-11e2-a2f1-a7acf9bd5d3a_story.html>
Bloomberg
<http://www.businessweek.com/news/2013-07-25/justice-department-to-seek-curbs-on-texas-voting-law-changes>
MSNBC
<http://tv.msnbc.com/2013/07/25/feds-to-sue-to-force-texas-to-keep-pre-clearing-voting-changes/>
Austin-American Statesman
<http://www.statesman.com/news/news/feds-seek-to-have-texas-voter-id-law-precleared/nY3wW/>
AP
<http://www.nytimes.com/aponline/2013/07/25/us/politics/ap-us-ag-voting-rights.html?ref=politics>
More to come
Share
<http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D53433&title=Bail%20In%20Coverage&description=>
Posted in Supreme Court <http://electionlawblog.org/?cat=29>, 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
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130725/04ae827a/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: share_save_171_16.png
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130725/04ae827a/attachment.png>
View list directory