[EL] Shelby County: Two more articles, one book, and a thought from me ...

Fri Jun 12 08:29:52 PDT 2015

Just to be clear: Under my suggestion the results would be cumulative for, say, nine or twelve years. The result would be a rolling nine or twelve year record of violations to which the preclearance formula would be applied, but jurisdictions would start now with a clean slate. Over the next nine or twelve years, the record would be cumulative, and then the look-back period would roll over so that it is always the past nine or twelve years.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

> On Jun 12, 2015, at 12:53 AM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu> wrote:
> 
> Here are two more articles, a book, and a thought from me on what *might* be done. 
> 
> Two articles:
> 
> Kareem Crayton & Terry Smith, Unteachable:  Shelby County, Canonical Apostasies, and  Ways Forward for Voting Rights,  67 SMU L. REV. 3 (2014), http://ssrn.com/abstract=2361495.
> 
> Kareem Crayton & Jane Junn, Five  Justices, Section 4  &  Three  Ways Forward  in Voting Rights,  9  DUKE  J.  OF CONST.  LAW  & PUB. POL. 113 (2013). (Abstract at http://ssrn.com/abstract=2431772; no full-text download available on SSRN at this time, as far as I can tell.)
> 
> The book:
> 
> Charles S. Bullock III, Ronald Keith Gaddie, and Justin J Wert. The Rise and Fall of the Voting Rights Act. Norman, Okla.: University of Oklahoma Press (The Studies in American Constitutional Heritage Series), in press. A rough description:
> 
> " 'The Rise and Fall of the Voting Rights Act' describes how the Act was victim to its own success. The Act was created to address a crisis arising from systemic and structural discrimination in voter access based on race. Forty years of successful implementation led to the renewal of the law. But, the failure of Congress to address potential defects in the law left it vulnerable to a systematic political and legal attack that led to successive trips to the US Supreme Court, which ultimately struck down a critical component of the law. This book examines the implementation and success of the VRA from its creation after the incident at Edmund Pettus Bridge through the 2006 renewal of the Act by Congress. We then describe and analyze the politics of the renewal and extension of the law during the Bush  administration, with an emphasis on the evidence considered in the renewal of the Act and efforts by conservatives to amend and revise the law. Finally, we describe and analyze the legal offensive that felled the law in successive lawsuits out of Texas and Alabama.   Finally, we consider the prospects for creating a revised and updated Voting Rights Act, and conclude that such prospects are slim because the realignment of the Republican majority in Congress is less receptive to a renewed VRA than was the GOP a decade ago."
> 
> My thought:
> 
> Here is a thought. I suppose others have already suggested something similar. (I haven't yet read very many of the articles identified in these posts.)
> 
> No member of Congress wants to enact legislation that will target his or her state or county or city based on data from the recent past, and label it as racist -- particularly not *currently* racist. That means a formula can't be enacted based on an updated record of misdeeds or alleged misdeeds, because everyone will know which states or other entities will be subject to preclearance, and there will be a firestorm in Congress. This much seems obvious.
> 
> Instead, why not set up a procedure under which everyone gets a clean slate, and then three years from now (and then every three years afterward, for perhaps 15 years) there can be an evaluation of the voting rights record of each state or entity under a clearly prescribed formula. No one will know which jurisdictions might end up subject to preclearance, and all can take steps to try to avoid becoming subject to it. Each member of Congress can say, "My state (or district) respects voting rights, will continue to do so, and will not become subject to this law!" Of course the difficulty will be in coming up with a formula and a way of implementing it. There might need to be a carve-out for practices that some people think will have a negative effect on particular groups of voters but others think necessary. Perhaps practices could be paired: for example, there could be a safe-harbor carve-out for voter I.D. laws if I.D.s are made easily available, but not if there are long lines at the polls. My guess is that long lines do a lot more to discourage voting than would a requirement that a voter show I.D. (Many of you may know whether my guess is correct.) Perhaps there could be bipartisan support for this kind of approach. No one will want to say that his or her state or district is going to misbehave going forward. Does this make any sense?
> 
> Again, just a thought. 
> 
> Best wishes,
> Mark
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> -----Original Message-----
> From: Scarberry, Mark 
> Sent: Wednesday, June 10, 2015 11:29 PM
> To: 'law-election at UCI.EDU'
> Subject: List of articles and other resources sent to me in response to my request (on Shelby County)
> 
> As promised, here is a compilation of articles and other resources that conlawprof and election-law list members sent me. Sorry for any misspellings or imperfect citations. If I missed something that one of you sent me, let me know and I'll send out a supplemental message. I'm sure there are many excellent articles that weren't sent to me and thus aren't in this list. Please recommend them directly to the rest of us (rather than sending them to me for me to forward on). 
> 
> 
> Joseph Fishkin, The Dignity of the South, 123 Yale L.J. Online 175 (2013), http://yalelawjournal.org/forum/the-dignity-of-the-south, and http://balkin.blogspot.com/2013/06/the-way-forward-after-shelby-county.html. 
> 
> Morgan Kousser, Do the Facts of Voting Rights Support Chief Justice Roberts's Opinion in Shelby County?, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2592829. 
> 
> Thomas Colby, Forthcoming, 65 DUKE L.J. (2016), IN DEFENSE OF THE EQUAL SOVEREIGNTY PRINCIPLE  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616889. 
> 
> Richard Pildes, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Supreme Court Review 1, http://ssrn.com/abstract=2411141; Shelby Commentary: What does the Court's decision mean? http://www.scotusblog.com/2013/06/shelby-commentary-what-does-the-courts-decision-mean/; and Legal scholarship highlight: How should the Court assess the workings of the other institutions of government?, http://www.scotusblog.com/2014/05/legal-scholarship-highlight-how-should-the-court-assess-the-workings-of-the-other-institutions-of-government/. 
> 
> Justin Levitt, Section 5 as Simulacrum, 123 Yale L.J. Online 151 (2013), http://ssrn.com/abstract=2265729, and http://www.scotusblog.com/2013/06/shadowboxing-and-unintended-consequences/. 
> 
> Guy-Uriel Charles & Luis Fuentes-Rohwer, State's Rights, Last Rites, and Voting Rights, 47 Conn. L. Rev. 481,  http://connecticutlawreview.org/files/2014/12/10-CharlesandRohwer.pdf.
> 
> Richard Hasen, Shelby County and the Illusion of Minimalism, http://ssrn.com/abstract=2291612.
> 
> Samuel Issacharoff, Beyond the Discrimination Model on Voting, http://ssrn.com/abstract=2306080.
> 
> Christopher S. Elmendorf & Douglas M. Spencer, The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County, 102 CAL. L. REV. ___, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2262954, and Administering Section 2 of the VRA After Shelby County, Columbia Law Review, vol. 115 Forthcoming,  http://ssrn.com/abstract=2414652. 
> 
> Nicholas Stephanopoulos, The South After Shelby County, 2013 Supreme Court Review 55, http://ssrn.com/abstract=2336749. 
> 
> Rick Vallely, , The Two Reconstructions (Univ. of Chicago Press), and Xi Wang, The Trial of Democracy (Univ. of Georgia Press), both of which provide background on voting rights laws during Reconstruction.
> 
> A piece by Judge Posner in Slate (I don't have the cite).
> 
> Abigail Thernstrom, WSJ op-ed, A Vindication of the Voting Rights Act -- The Supreme Court's ruling in Shelby County will help black political aspirations, June 26, 2013.
> 
> Akhil Reed Amar, Essay: The Lawfulness of Section 5 - and Thus of Section 5, HARVARD LAW REVIEW FORUM, http://harvardlawreview.org/2013/02/the-lawfulness-of-section-5-and-thus-of-section-5/.
> 
> Ilya Shapiro, SHELBY COUNTY AND THE VINDICATION OF MARTIN LUTHER KING'S DREAM, 8 New York University Journal of Law & Liberty 182, http://object.cato.org/sites/cato.org/files/articles/shelby-county-for-nyujll-final.pdf. 
> 
> 
> 
> Thanks for all the responses to my initial question.
> 
> Mark
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> 
> 