[EL] 6/25/13 Shelby County wrap-up: reactions from academics
Justin Levitt
levittj at lls.edu
Tue Jun 25 20:55:43 PDT 2013
Again, apologies to anyone I've missed.
A blast from the past <http://electionlawblog.org/?p=52142>
Posted onJune 25, 2013 8:33 pm
<http://electionlawblog.org/?p=52142>byJustin Levitt
<http://electionlawblog.org/?author=4>
And just in case you're feeling nostalgic,here's a link to ELB posts
about the VRA renewal <http://electionlawblog.org/?cat=3>, from the
congressional renewal process itself in 2006 to the NAMUDNO case in 2009.
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Reactions to Shelby County: Justin Levitt
<http://electionlawblog.org/?p=52173>
Posted onJune 25, 2013 8:30 pm
<http://electionlawblog.org/?p=52173>byJustin Levitt
<http://electionlawblog.org/?author=4>
Yes, I've got some thoughts too. Some of them are inthis conversation
<http://blogs.wsj.com/law/2013/06/25/will-congress-right-the-voting-rights-wrongs/>with
Ashby Jones at the Wall St. Journal (just enough to tantalize before the
paywall).
I've also got a post up at the SCOTUSblog symposium
<http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/>:
<http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/>
Shadowboxing and unintended consequences
<http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/>
The Court today struck down a statute that did not exist. And it did so
at the request of jurisdictions seeking a little extra "dignity" --- who
might end up with /less/ dignity as a result.
Formally, the Court struck the 2006 reauthorization of 42 U.S.C. § 1973b
--- Section 4 of the Voting Rights Act, and a central part of the Act's
preclearance regime. Its more famous counterpart, Section 5, requires
certain jurisdictions to submit election changes for federal review, to
ensure that they do not harm minority voting power. Section 5 sets the
"what." Section 4 sets the "where," delineating which jurisdictions
receive Section 5?s special medicine.
But the Section 4 that the Court struck is a curious creature --- as I'd
feared, a simulacrum <http://ssrn.com/abstract=2265729>. The Court
branded it the rote reenactment of a "formula based on 40-year-old facts
having no logical relation to the present day."
This stale formula is not the coverage formula actually in the law. The
formula started with 1960s and 1970s registration and turnout figures,
locating the broken democracies connected to the worst discrimination.
But it did not end there. It allowed any jurisdiction that had
demonstrated consistent improvement in minority opportunities, without
backsliding, to "bail out" of coverage.
As I have written
<http://www.acslaw.org/acsblog/bringing-sweats-to-the-court> before
<http://ssrn.com/abstract=2265729>, this bail-out provision --- and a
companion "bail in" section roping intentional wrongdoers into a
preclearance-like regime --- connected the old problem to present
circumstances. Any jurisdiction not covered in 2006 was either never
broken or was broken but healed. Which means that any jurisdiction
covered in 2006 was either healed but didn't overly mind the costs of
preclearance ... or was not sufficiently healed. The decision to re-up
these jurisdictions in 2006 was emphatically a determination connected
to 2006 information.
It is odd that bail-out --- the logical relation that Congress did
establish to connect forty-year-old facts to the present day --- is all
but absent from the majority's decision. It was mentioned three times
at oral argument, but not by any Justice
<http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/section-5-as-simulacrum/>.
In today's opinion, the Chief Justice mentioned it briefly in the course
of reviewing the procedural history --- including a review of the
Court's 2009 decision in /NAMUDNO v. Holder/ that was all about
bail-out. But even though it should have been top of mind, there is no
attempt in the substance of the opinion to confront bail-out as the
living organism within the coverage formula, contracting coverage to
suit present conditions.
The Court also struck a simulacrum of Section 4 once aimed at casting a
ballot; now, applied to vote dilution, its geographic coverage is no
longer appropriate to the problem. Congress's original formula was
fine, said the Court, for problems related to casting a ballot; after
all, the section's baseline began with registration and turnout
figures. But the Court thinks it irrational to select jurisdictions
with a risk of problems like vote dilution using a formula based on turnout.
Except, of course, that the registration and turnout figures in section
4 were always proxies. Congress did not set out to solve registration
difficulties alone: it set out to solve discrimination based on race in
the political process. Anomalously low registration and turnout were
just ready /measures/ of the problem. An ailment that causes a fever
one day may cause chills or hives the next; treating the fever does not
mean that the ailment is gone. The Court's misunderstanding of the
scope of the problem mistakes the most obvious symptoms for the problem
itself.
So the Court lashed out at a strawman. And yet, the fact remains that
the real Section 4 is now just as null as the fictional Section 4 struck
down today.
There will be plentiful attention to what Congress can or should do
now. Some are calling for a new coverage formula, styled around Section
2 litigation or levels of racial polarization or levels of prejudice.
(This will be a difficult road: any "disparate geographic coverage" must
be "sufficiently related to the problem that it targets," using current
data. And to the extent this requires a showing of recent harm as a
proxy for future harm, the current data is skewed by the very success of
Section 5.) Some are calling for a constitutional amendment. Some are
calling for an approach that focuses on race-neutral promotion of voting
rights instead. I am skeptical that a substitute regime will
effectively address the most pernicious problems, but if it is possible
to have an adult conversation about the topic, that conversation is not
only welcome, but necessary.
So instead, let me briefly discuss life in the covered jurisdictions in
the interregnum between the preclearance regime now past and the
protective regime (whatever its contours) of the future.
As of 10:10 a.m. ET this morning, protection of the effective exercise
of the franchise for racial and ethnic minorities relies on two primary
supports. The first is incumbent self-interest: if minority
communities' anger at today's decision turns to mobilization at the
polls, elected officials may calculate that any new regressive seawalls
will be overwhelmed by a wave of new participants, and pivot to surf the
tide instead.
Where racial polarization is stark and minority communities are somewhat
smaller, the scenario above looks far too rosy: local incentives align
around containing rather than incorporating a burgeoning swell of
minority participation. Here, voting rights now depend on affirmative
litigation.
This litigation comes at a cost. The lawyers and political data experts
needed to prove a violation of Section 2 of the Voting Rights Act are
expensive. And even if statewide election rules and redistricting plans
become natural targets for government, nonprofit, and party resources,
the costs of these suits may be prohibitively expensive for others.
When the city council lines of a small town are redrawn to fracture the
representation of a growing minority community that threatens the status
quo, poorer communities will find it harder to fight back.
Intriguingly, the costs are not merely one-sided. (This is not cause
for solace.) Costs may also well increase for the small towns in
covered jurisdictions, making the absence of Section 5 a lose-lose
proposition. Under Section 5, the administrative preclearance process
was relatively straightforward for the vast majority of proposed policy
changes. And though the preclearance process (expressly) did not
insulate laws from subsequent litigation, successful preclearance may
have served as a signal to deter follow-on lawsuits, in cases where
affirmative claims were plausible but uncertain. Without Section 5,
that signal disappears. Which may lead to an increase in litigation,
for warranted and unwarranted lawsuits alike. Local governments that
choose to defend will find their lawyers expensive as well. We may see
exactly how much the purportedly restored dignity of covered
jurisdictions
<http://yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-dignity-of-the-south/> is
worth.
The irony for states seeking jurisdictional dignity is that much of this
new litigation will arrive in the arms of plaintiffs seeking not only
relief under Section 2, but a finding of intentional discrimination.
Why? Section 3 of the Voting Rights Act
<http://www.law.cornell.edu/uscode/text/42/1973a#c>, the "pocket trigger
<http://www.yalelawjournal.org/the-yale-law-journal/note/the-voting-rights-act%27s-secret-weapon:-pocket-trigger-litigation-and-dynamic-preclearance/>,"
allows federal judges to impose a regime similar to preclearance in most
respects, on any jurisdiction violating the voting guarantees of the
Fourteenth or Fifteenth Amendments.
This standard is high, but not impossible. And it embraces far more than
animus. Per then-Judge Kozinski of the Ninth Circuit
<http://scholar.google.com/scholar_case?case=8330447326088275072>:
The lay reader might wonder if there can be intentional discrimination
without an invidious motive. Indeed there can. . . . Assume you are an
anglo homeowner who lives in an all-white neighborhood. Suppose, also,
that you harbor no ill feelings toward minorities. Suppose further,
however, that some of your neighbors persuade you that having an
integrated neighborhood would lower property values and that you stand
to lose a lot of money on your home. On the basis of that belief, you
join a pact not to sell your house to minorities. Have you engaged in
intentional racial and ethnic discrimination? Of course you have. Your
personal feelings toward minorities don't matter; what matters is that
you intentionally took actions calculated to keep them out of your
neighborhood.
In the case there at issue, Judge Kozinski found Los Angeles's
redistricting plan to be "a lucid demonstration that elected officials
engaged in the single-minded pursuit of incumbency can run roughshod
over the rights of protected minorities." A consequent consent decree
effected "bail-in" for Los Angeles County for ten years. Since 1979,
cities and counties in nine different states, as well as the states of
Arkansas and New Mexico have been "bailed in" to a preclearance system.
Just last year, a federal court found
<http://scholar.google.com/scholar_case?case=13116118305322883110> that
the Texas redistricting plans were enacted with discriminatory intent.
I would not be shocked to see a request for "bail in" to follow, in
Texas and in other areas covered yesterday and suddenly uncovered today.
Section 5 may have involved a perceived affront to the dignity of local
jurisdictions, but it also allowed them to shunt responsibility for the
slight. Local officials could claim that Congress had erred: there is
surely a political benefit to claiming that preclearance isn't really
deserved, and without a more particularized determination, all
jurisdictions could claim that benefit. The Court's decision today may
well lead to federal court orders restoring preclearance piecemeal, and
more directly attributing responsibility in the process. And if
constitutional fit thereby improves, it would improve at the cost of the
very dignity of the jurisdictions that requested the Court's decision today.
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Reactions to Shelby County: still coming
<http://electionlawblog.org/?p=52129>
Posted onJune 25, 2013 8:33 pm
<http://electionlawblog.org/?p=52129>byJustin Levitt
<http://electionlawblog.org/?author=4>
A few more voices from the academic side of the fence. I'll continue to
collect what I receive (and what I can find).
* David Schultz, The End of the Second Civil Rights Era and the Coming
of the Second Great Disenfranchisement
<http://schultzstake.blogspot.com/2013/06/the-end-of-second-civil-rights-era-and.html>
* Aaron Zelinsky,The Fifty State Solution to Shelby County
<http://www.concurringopinions.com/archives/2013/06/the-fifty-state-solution-to-shelby-county.html> (spoiler
alert: preclearance for all, bailout for most)
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Reactions to Shelby County: Mark Graber
<http://electionlawblog.org/?p=52171>
Posted onJune 25, 2013 8:24 pm
<http://electionlawblog.org/?p=52171>byJustin Levitt
<http://electionlawblog.org/?author=4>
Also over atBalkinization
<http://balkin.blogspot.com/2013/06/the-missing-amendments.html>, Mark
Graber wonders where the Civil War went...
From 1861 to 1865, the United States fought a civil war. The
outcome of the war were three constitutional amendments, military
rule in the south, and numerous federal laws minutely regulating
political procedures in the former confederate states. The
constitutional significance of the Civil War and Reconstruction
remains a source of political and scholarly debate, but no one
denies that something of great constitutional importance happened
during the 1860s. Until today.
Morehere <http://balkin.blogspot.com/2013/06/the-missing-amendments.html>.
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Shelby County and Texas <http://electionlawblog.org/?p=52147>
Posted onJune 25, 2013 7:30 pm
<http://electionlawblog.org/?p=52147>byJustin Levitt
<http://electionlawblog.org/?author=4>
As usual,Michael Li <http://txredistricting.org/>breaks down
theramifications of today's decision
<http://txredistricting.org/post/53842655437/breaking-supreme-court-strikes-down-section-5-coverage>for
all of the continuing controversy in Texas.
One of the curiosities: Texas redrew state and federal district lines in
2011. A DC federal court denied preclearance for those lines (which
included findings ofintentional discrimination
<http://scholar.google.com/scholar_case?case=13116118305322883110>, some
(but not all) of which was based on a distinct burden of proof for
preclearance). Based on that denial, a San Antonio federal court drew
interim lines for Texas districts (state and federal) in 2012. The
Texas legislature has since passed maps for 2014 and beyond, based in
large part on the interim lines, which are still heavily contested by
the San Antonio litigants. But the Governor has not yet signed the new
plans. Which means that the 2011 maps are, at the moment, legally
operative --- despite a federal court's finding that they were enacted
with the intent to discriminate.
Gonna be an interesting couple weeks/months/years in Texas.
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<http://electionlawblog.org/?cat=9>,Voting Rights Act
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"The Chief Justice's Long Game" <http://electionlawblog.org/?p=52150>
Posted onJune 25, 2013 7:20 pm
<http://electionlawblog.org/?p=52150>byRick Hasen
<http://electionlawblog.org/?author=3>
The/New York Times/has posted my oped
<http://www.nytimes.com/2013/06/26/opinion/the-chief-justices-long-game.html?ref=opinion&_r=0>(for
Wednesday's newspaper) on the Shelby County decision. It begins:
IN an opinion brimming with a self-confidence that he hides behind a
cloak of judicial minimalism, Chief Justice John G. Roberts Jr.,
writing for a conservative Supreme Court majority inShelby County v.
Holder <http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>,
cripples Section 5 of the Voting Rights Act.
The court pretends it is not striking down the act but merely
sending the law back to Congress for tweaking; it imagines that
Congress forced its hand; and it fantasizes that voting
discrimination in the South is a thing of the past. None of this is
true.
In the Shelby decision, we see a somewhat more open version of a
pattern that is characteristic of the Roberts court, in which the
conservative justices tee up major constitutional issues for
dramatic reversal. First the court wrecked campaign finance law
inCitizens United.
<http://www.law.cornell.edu/supct/html/08-205.ZS.html>On Tuesday it
took away a crown jewel of the civil rights movement. Andas we saw
<http://www.nytimes.com/2013/06/25/us/affirmative-action-decision.html?ref=adamliptak>in
Monday'sFisher case,
<http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf>affirmative
action is next in line, even if the court wants to wait another year
or two to pull the trigger. Imagine striking down affirmative action
and the Voting Rights Act in the same week!
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The curious disappearance of Boerne and the future jurisprudence of
voting rights and race <http://electionlawblog.org/?p=52148>
Posted onJune 25, 2013 7:17 pm
<http://electionlawblog.org/?p=52148>byRick Hasen
<http://electionlawblog.org/?author=3>
[Cross-posted fromSCOTUSBlog
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>]
*The curious disappearance of/Boerne/and the future jurisprudence of
voting rights and race*
/Richard L. Hasen publishes Election Law Blog and is//Chancellor's
Professor of Law and Political Science at UC Irvine./
A funny thing happened between the Supreme Court's 2009 opinion
in/NAMUDNO v. Holder
<http://www.bloomberglaw.com/public/document/Northwest_Austin_Mun_Utility_Dist_No_One_v_Holder_129_S_Ct_2504_1>/,
sidestepping the question of the constitutionality of Section 5 of the
Voting Rights Act, and the Court's new/Shelby County/decisioneffectively
<http://t.co/dWN4s24S00>striking it down on a five-to-four basis: the
Court majority failed to expressly resolve an open question of how to
scrutinize Congress's power to enforce the Fifteenth amendment in voting
rights cases. It is not clear what that means for challenges to other
voting and civil rights provisions going forward, but the Court for now
seems to have foreclosed greater deference for voting decisions under
Congress's Fifteenth amendment powers. That could spell trouble for
Section 2 of the Voting Rights Act, Section 203 of the Act (the language
provisions), and other laws aimed at preventing race discrimination in
voting.
In/South Carolina v. Katzenbach
<http://www.bloomberglaw.com/public/document/South_Carolina_v_Katzenbach_383_US_301_86_S_Ct_803_15_L_Ed_2d_769/3>/,
a case from the 1960s initially upholding the Voting Rights Act Section
5, the Court endorsed a "rational basis" standard of review which gave
Congress broad Fifteenth Amendment powers to pass anti-discrimination
voting laws. That's no surprise: the whole point of the Fifteenth
Amendment was to stop racial discrimination in voting and it was going
to take the federal government to bring the former Confederacy into line.
But in/NAMUDNO/, the Court raised the possibility that a line of
Fourteenth Amendment power cases beginning with/City of Boerne v. Flores
<http://www.bloomberglaw.com/public/document/City_of_Boerne_v_Flores_521_US_507_117_S_Ct_2157_138_L_Ed_2d_624_/3>/could
apply now to review of voting rights. The/Boerne/test is much tougher on
Congress, requiring that it pass laws burdening states only when
Congress demonstrates with admissible evidence (to the satisfaction of
the Court, not itself) that there is evidence of significant
unconstitutional conduct being undertaken by the states and that the
means Congress chooses to address it are "congruent and proportional" to
the constitutional violations.
Here's how the Court sidestepped the issue in/NAMUDNO/:
The parties do not agree on the standard to apply in deciding
whether, in light of the foregoing concerns, Congress exceeded
itsFifteenth Amendment
<http://www.law.cornell.edu/supct-cgi/get-const?amendmentxv>enforcement
power in extending the preclearance requirements. The district
argues that " '[t]here must be a congruence and proportionality
between the injury to be prevented or remedied and the means adopted
to that end,' " Brief for Appellant 31, quoting/City of
Boerne/v./Flores/,521 U. S. 507
<http://www.law.cornell.edu/supct-cgi/get-us-cite?521+507>, 520
(1997) ; the Federal Government asserts that it is enough that the
legislation be a " 'rational means to effectuate the constitutional
prohibition,' " Brief for Federal Appellee 6,
quoting/Katzenbach/,/supra/, at 324. That question has been
extensively briefed in this case, but we need not resolve it. The
Act's preclearance requirements and its coverage formula raise
serious constitutional questions under either test.
Perhaps the biggest surprise of/Shelby County/is that the majority
purported to ignore this/Boerne/issue. The majority does not
even/cite/to/Boerne/even though this has been a key issue involving the
constitutionality of Section 5 for years. (I firstwrote about the issue
in 2005 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=561241>,
even before the 2006 renewal.) Here's all that the Court has to say
in/Shelby County/on the standard of review, in its first footnote: "Both
the Fourteenth and Fifteenth Amendments were at issue in/Northwest
Austin/. . . and accordingly/Northwest Austin/guides our review under
both Amendments in this case."
The failure to set the standard of review is no mere oversight by Chief
Justice Roberts. The footnote appears deliberately inscrutable: the
Court sidesteps an issue about the standard of review in Case 1, and in
Case 2 the Court endorses Case 1's analysis of the standard of review.
And the rest of the opinion is not helpful either: the equal federal
sovereignty analysis which the Court uses to kill Section 5 of the VRA
is a/Bush v. Gore/-like one-day-only ticket. Few other voting laws fit
this pattern (though one could imagine the language provisions of the
Voting Rights Act in Section 203 falling under this analysis).
I presume the Chief Justice obfuscated the standard of review in this
case as atime bomb <http://electionlawblog.org/?p=51773>: in a future
case he could cite to/NAMUDNO/and/Shelby County/fn. 1 for the
proposition that the Court has held that the Fourteenth and Fifteenth
amendment standards are the same, and then bootstrapping
the/Boerne/standard into a Fifteenth Amendment case. Saying so directly
would have made today's controversial decision even more provocative
than it is; obfuscation better serves the Chief Justice's attempt to
portray his decision as an act of judicial modesty rather than a radical
restricting on Congress's power against the states (more on that in my
op-ed for/The//New York Times/). A future opinion can still look back on
the obscure footnote as having resolved a key issue. Thetime bomb
explodes <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1750398>.
If that prediction's right, then I expect to see new challenges to
Section 2 of the Voting Rights Act (which applies nationwide) and other
voting laws on grounds they exceed Congress's Fourteenth and Fifteenth
Amendment voting powers. (Watch as conservatives move the goalposts
here: a key argument against Section 5 was that it was not needed thanks
to Section 2. But now that Section 5 has fallen, I expect lawsuits to
next challenge the constitutionality of Section 2.)
How successful these new attacks on voting rights are likely to be
depends upon the future of the Court. Liberals have to hope that the
slow moving train of conservative jurisprudence will move slowly enough
to await the departure of Justice Kennedy orJustice Scalia
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/02/campaign_finance_reform_when_scalia_leaves_the_supreme_court.html>during
the administration of a Democratic president, at which point the liberal
Justices can turn the train around and rightly proclaim that/Shelby
County/never expressly endorsed the tough/Boerne/standard for voting cases.
Posted in/Shelby County v. Holder
<http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/>/,Merits
Cases <http://www.scotusblog.com/category/merits-cases/>,The Court and
the Voting Rights Act
<http://www.scotusblog.com/category/special-features/the-court-and-the-voting-rights-act/>
*Recommended Citation:*Rick Hasen,/The curious disappearance
of/Boerne/and the future jurisprudence of voting rights and race/,
SCOTUSblog (Jun. 25, 2013, 7:10 PM),
http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/
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Reactions to Shelby County: Joey Fishkin
<http://electionlawblog.org/?p=52125>
Posted onJune 25, 2013 6:43 pm
<http://electionlawblog.org/?p=52125>byJustin Levitt
<http://electionlawblog.org/?author=4>
Joey Fishkin weighs in, atBalkinization
<http://balkin.blogspot.com/2013/06/the-way-forward-after-shelby-county.html>.
On the face of it, what the Court did today in /Shelby County
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf>/ seems
more modest than what it might have done. While it could have
struck down Section 5 of the Voting Rights Act---and indeed Justice
Thomas wrote separately to say he would have---instead the Court
struck "only" Section 4, the coverage formula that determines which
states are covered under the Act. Many have already pointed out
that this is a distinction without a difference: since this Congress
seems unlikely to enact a new Section 4 coverage formula (and there
is no telling whether such a formula would be upheld by this Court
anyway), the Court's move today was at best false modesty. Section
5 is essentially <http://nyti.ms/19pXBpm>dead
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_court_and_the_voting_rights_act_goodbye_to_section_5.html>,
whether or not the Court admits it did the deed.
I want to suggest in this post that while it's correct that this
distinction makes little immediate difference, in jurisprudential
terms, striking Section 4 was in some ways /more/ radical than
striking Section 5. The Court's approach to Section 4 represents a
new departure in American federalism, one only hinted at in dicta in
one previous case: a principle that the states' "equal sovereignty"
constrains Congress' ability to treat one state differently from
another. This principle is one that should not have survived
Reconstruction. Its appearance in the federalism jurisprudence of
2013 does not augur anything good.
Morehere
<http://balkin.blogspot.com/2013/06/the-way-forward-after-shelby-county.html>.
This builds on Joey'srecent piece
<http://www.yalelawjournal.org/the-yale-law-journal-pocket-part/election-law/the-dignity-of-the-south/>about
the "equal dignity of states" argument, which I can't recommend highly
enough.
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Reactions to Shelby County: the conlawprof blog
<http://electionlawblog.org/?p=52122>
Posted onJune 25, 2013 3:47 pm
<http://electionlawblog.org/?p=52122>byJustin Levitt
<http://electionlawblog.org/?author=4>
Plenty of thoughts from Steven Schwinnover here
<http://lawprofessors.typepad.com/conlaw/2013/06/our-voting-rights-act-coverage-so-far.html>,
at the Con Law Prof blog.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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Reactions to Shelby County: Heather Gerken
<http://electionlawblog.org/?p=52110>
Posted onJune 25, 2013 3:11 pm
<http://electionlawblog.org/?p=52110>byJustin Levitt
<http://electionlawblog.org/?author=4>
Heather Gerken <http://www.law.yale.edu/faculty/HGerken.htm>offers a
eulogy to the preclearance regime, over atSlate
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_court_and_the_voting_rights_act_goodbye_to_section_5.html>.
The Supreme Court struck down the crown jewel of the Civil Rights
movement today. Section 5 was the most powerful tool in the
movement's arsenal. Although I'm a law professor and thus supposed
to be opining on the court's decision and Congress' potential
response, I want to spend a little time mourning Section 5's passing
before hashing out the consequences.
To understand why Section 5 was special, you have to know a bit
about its history. . . .
More of the moving piece here
<http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_court_and_the_voting_rights_act_goodbye_to_section_5.html>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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Reactions to Shelby County: Rick Hasen
<http://electionlawblog.org/?p=52107>
Posted onJune 25, 2013 2:53 pm
<http://electionlawblog.org/?p=52107>byJustin Levitt
<http://electionlawblog.org/?author=4>
There will be more (much more) from Rick. (And I'll keep this spot
updated as I find them.) But just as a start, here he is (with David
Savage, Ilya Shapiro, and Lani Guinier) discussing the case onTalk of
the Nation
<http://www.npr.org/2013/06/25/195557564/what-changes-after-supreme-court-ruling-on-voting-rights-act?sc=tw&cc=share>.
UPDATE: Rick's also gotone of the entries
<http://www.scotusblog.com/2013/06/the-curious-disappearance-of-boerne-and-the-future-jurisprudence-of-voting-rights-and-race/>in
SCOTUSblog's /Shelby County /symposium today, discussing the odd absence
of a definitive standard of review for Congressional action to enforce
the Fifteenth Amendment.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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Reactions to Shelby County: Josh Douglas
<http://electionlawblog.org/?p=52104>
Posted onJune 25, 2013 12:51 pm
<http://electionlawblog.org/?p=52104>byJustin Levitt
<http://electionlawblog.org/?author=4>
Josh Douglas <http://www.law.uky.edu/index.php?hid=93>weighs in on
Shelby County atPrawfsblawg
<http://prawfsblawg.blogs.com/prawfsblawg/2013/06/the-voting-rights-act-is-dead-long-live-the-voting-rights-act.html>:
Well, so much for strategic compromise
<http://prawfsblawg.blogs.com/prawfsblawg/2013/06/strategic-compromise-on-the-supreme-court.html>.
The Supreme Court ruled
<http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf> this
morning, along ideological lines in a 5-4 decision, to invalidate a
key provision of the Voting Rights Act.
Morehere
<http://prawfsblawg.blogs.com/prawfsblawg/2013/06/the-voting-rights-act-is-dead-long-live-the-voting-rights-act.html>.
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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Reactions to Shelby County: Rick Pildes
<http://electionlawblog.org/?p=52090>
Posted onJune 25, 2013 12:11 pm
<http://electionlawblog.org/?p=52090>byJustin Levitt
<http://electionlawblog.org/?author=4>
Continuing in the series of academic reactions to Shelby County, here's
Rick Pildes onSCOTUSblog
<http://www.scotusblog.com/2013/06/shelby-commentary-what-does-the-courts-decision-mean/>:
I have called the Voting Rights Act of 1965 (VRA) a "sacred symbol"
of American democracy. For that reason, the Supreme Court's
momentous decision holding unconstitutional a part of the Act --
Section 4, for short --- that had continued to apply, nearly fifty
years later, uniquely to the South, is itself laden with deep
symbolic meaning. But what is that meaning?
In truth, the decision will express such radically different
meanings to different people that we will not be able to forge
common ground regarding even the threshold question of what the
decision is "about." Starting from such irreconcilable symbolic
places, any discussion of the actual opinions themselves will be
almost beside the point.
Morehere
<http://www.scotusblog.com/2013/06/shelby-commentary-what-does-the-courts-decision-mean/>.
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About to Be on Talk of the Nation; My OpEd on Case Coming Soon
<http://electionlawblog.org/?p=52078>
Posted onJune 25, 2013 10:21 am
<http://electionlawblog.org/?p=52078>byRick Hasen
<http://electionlawblog.org/?author=3>
And more commentary later on today's blockbuster Voting Rights decision.
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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,Voting
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Reactions to Shelby County: Spencer Overton
<http://electionlawblog.org/?p=52072>
Posted onJune 25, 2013 9:31 am
<http://electionlawblog.org/?p=52072>byJustin Levitt
<http://electionlawblog.org/?author=4>
I'll be expecting several comments today on/Shelby County /from
academics who write in the field. Spencer Overton
<http://www.law.gwu.edu/Faculty/profile.aspx?id=3813> kicks it off:
The preclearance provision of the Voting Rights Act required that
all or part of 15 states submit their election changes to federal
officials for approval. Today, five members of the Court ruled that
the Section 4 coverage formula of the Voting Rights Act is
unconstitutional and can no longer be used to require that areas
preclear their election rules with federal officials. The Court
invalidated the coverage formula because the Justices believed the
formula was based on outdated election data from the 1960s and 1970s.
Today's Supreme Court decision is a setback for democracy.
Unfortunately, today's decision gives politicians even more power to
unfairly manipulate election rules and target Americans based on how
they look or talk. There is overwhelming evidence that unfair voting
rules remain a very real threat---too many political operatives
currently manipulate rules to diminish the voices of growing
minority communities.
His thoughts continuehere <http://spenceroverton.com/>.
UPDATE: More from Spencer at HuffPo: "How to Update the Voting Rights
Act
<http://www.huffingtonpost.com/spencer-overton/how-to-update-the-voting_b_3497350.html>"
FURTHER UDPATE: Spencer'sbeen busy <http://spenceroverton.com/>:NY Times
<http://projects.nytimes.com/live-dashboard/2013-06-25-supreme-court#sha=6e4719c61>,
NPR (here
<http://www.npr.org/templates/story/story.php?storyId=195533027>andhere
<http://thekojonnamdishow.org/shows/2013-06-25/supreme-court-voting-rights>),HuffPo
video <http://huff.lv/12h6mNa>
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Posted inVoting Rights Act <http://electionlawblog.org/?cat=15>
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--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
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