[EL] Anti-retrogression - Ned Foley

[Gaddie, Ronald K.]

The non-retrogression standard is solemnized in law as part of Sec. 5 of the Voting Rights Act. The neutering of the Sec. 4 trigger to indicate its scope of application has rendered it non-functioning. WHile not as broad as the Australina, provision, the concept has existed in U.S. voting rights law since 1965.

Keith Gåddie, Ph.D.
President's Associates Presidential Professor of Architecture & Journalism
Executive Faculty Fellow of the University of Oklahoma
Senior Fellow of Headington College <http://ouheadingtoncollege.org/>
General Editor, Social Science Quarterly

"I would like to build a University of which the football team could be proud." ~George Lynn Cross
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Graeme Orr <graeme.orr2008 at gmail.com>
Sent: Sunday, March 7, 2021 8:11 PM
To: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: [EL] Anti-retrogression - Ned Foley

Thanks Prof Foley for sharing that paper - it's a blockbuster!

The Australian High Court, starting in 2007, adopted an analogous, ratchet approach.   That is, of not just saying 'the lord that giveth can taketh away', but subjecting any back-peddling on previously established voting rights or processes to extra scrutiny.
The origin was in the prisoner franchise case where the question was normative.   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1976140<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1976140&d=DwMFaQ&c=qKdtBuuu6dQK9MsRUVJ2DPXW6oayO8fu4TfEHS8sGNk&r=itJIms9G3wxvyGkmVqA7xg&m=ijke_mThn4N9q1zAktsFfP7OYE1V7VYuoDhHZNPbDV4&s=HysTd5_t_CaeiC5sQu9JV_MO4W9lVtBDW8HxmDfamwY&e=>
This was then developed into something like due process ('where's the evidence of clear necessity') in a more mechanical case.  Which struck down a law backtracking on the time allowed for electors to get registered.   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926493<https://urldefense.proofpoint.com/v2/url?u=https-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1926493&d=DwMFaQ&c=qKdtBuuu6dQK9MsRUVJ2DPXW6oayO8fu4TfEHS8sGNk&r=itJIms9G3wxvyGkmVqA7xg&m=ijke_mThn4N9q1zAktsFfP7OYE1V7VYuoDhHZNPbDV4&s=N7AR6SeDdTk6Ru1CePeW43s8v3fXOXb-5zjx6RS0EXc&e=>

I realise SCOTUS often doesn't look further afield than the union - and then maybe occasionally to India, Canada or EU.    But that this approach is now entrenched in a democracy with similar characteristics may be of interest.

Graeme Orr
Professor, Law
University of Queensland
Australia
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