Election Law Commons^™

Dismissing Deterrence, Ellen D. Katz

Articles

The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.

A Tale Of Two Minority Groups: Can Two Different Minority Groups Bring A Coalition Suit Under Section 2 Of The Voting Rights Act Of 1965, Sara Michaloski

Catholic University Law Review

No abstract provided.

What Became Of Fundamental Rights?: Of Voter Ids And Voting Rights, Carol Nackenoff

Schmooze 'tickets'

No abstract provided.

The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout

Schmooze 'tickets'

This Essay explores the ideological underpinnings of the modern Supreme Court’s election law decisions, arguing that the Court does not have a strong commitment to federalism or to unfettered debate or to the mistrustful citizen. Instead, the opinions reveal a complacency about corruption and a narrow view of the role of citizens. The Essay is part of a volume on neoliberalism for Law and Contemporary Problems.

Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii

Schmooze 'tickets'

No abstract provided.

Shelby County V. Holder And Preclearance As Legislative Injunction, Henry L. Chambers

Schmooze 'tickets'

No abstract provided.

Voting Rights Law And Policy In Transition, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

State's Rights, Last Rites, And Voting Rights, Luis Fuentes-Rohwer, Guy-Uriel Charles

Articles by Maurer Faculty

There are two ways to read the Supreme Court's decision in Shelby County Alabama v. Holder: as a minimalist decision or as a decision that undermines the basic infrastructure of voting rights policy, law, and jurisprudence. In this Article, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights policy, law, and jurisprudence. First, the Court has generally granted primacy of the federal government over the states. Second, the Court has deferred to Congress particularly where Congress is regulating at the intersection of race …

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

Articles

After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Geography Of Racial Stereotyping: Evidence And Implications For Vra ‘Preclearance’ After Shelby County, Christopher S. Elmendorf, Douglas M. Spencer

Publications

The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act. The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This Article proposes a new, legally defensible approach to coverage based on between-state differences in the proportion of voting age citizens who subscribe to negative stereotypes about racial minorities and who 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 …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Unfinished Business: Protecting Voting Rights In The Twenty-First Century, Gilda R. Daniels

All Faculty Scholarship

While minorities have experienced great progress because of the Voting Rights Act, particularly section 5 of the Act, the work to achieve an electoral process free of discrimination remains unfinished. In Shelby County v. Holder, the Supreme Court struck down section 4 of the Act, which provided the coverage formula through which section 5 was implemented. Without section 4, there is no section 5. The historical and contemporaneous discrimination that minorities in states formerly covered under section 5 continue to face is substantial and outpaces that in noncovered states. Scholars cannot divorce the debate surrounding section 5’s constitutionality, which continues …

The "Nixon Sabotage": The Political Origins Of The Equal Protection Challenge To The Voting Rights Act, Danieli Evans

Articles

Critics of the Voting Rights Act argue that the anti-discrimination law requires states to engage in unconstitutional discrimination, as state decisionmakers must be conscious of race in order to ensure that voting policies do not weaken minority representation. This argument relies on the idea that subjective racial motivation is the essence of unconstitutional discrimination (even if benevolent, or to promote racial inclusion). The conventional understanding among constitutional scholars is that this “search for the bigoted decisionmaker” developed in employment and housing discrimination decisions between 1976 and 1979. Previous accounts have not recognized the role that the 1971 school desegregation decision …

Lining Up: Ensuring Equal Access To Vote, Gilda R. Daniels

All Faculty Scholarship

This booklet ( a joint project of the Advancement Project and the Lawyer's Committee for Civil Rights Under Law) provides an extensive overview of restrictive voting laws, especially concerning minority voters. Daniels begins with a summary of voter obstructions and intimidation in the 2012 election, and then places that within the context of the history of voting and race in America.

Most recently, the Section 5 protections of the Voting Rights Act of 1965 were effectively removed by the Shelby County v. Holder Supreme Court decision. Daniels then explains what this means practically and legally for minority voters and how …

The Right Choice For Elections: How Choice Voting Will End Gerrymandering And Expand Minority Voting Rights, From City Councils To Congress, Rob Richie, Andrew Spencer

University of Richmond Law Review

No abstract provided.

Partisanship, Politics, And The Voting Rights Act: The Curious Case Of U.S. V. Ike Brown, Donald E. Campbell

Journal Articles

The Voting Rights Act of 1965 has been described as the "crown jewel" of the Civil Rights Movement. The success of the Act to remove official obstacles to voting is undeniable, and the influx of African American voters into the political system changed the nature of politics in the United States at all levels. The political and cultural context has changed so greatly that in 2006, it was politically possible for the President Bush's Justice Department to bring the first claim against an African American for violating the voting rights of white citizens. This article seeks to explain how this …

Mapping A Post-Shelby County Contingency Strategy, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

Professors Guy-Uriel E. Charles and Luis Fuentes-Rohwer argue that voting rights activists ought to be prepared for a future in which section 5 is not part of the landscape. If the Court strikes down section 5, an emerging ecosystem of private entities and organized interest groups of various stripes—what they call institutional intermediaries—may be willing and able to mimic the elements that made section 5 an effective regulatory device. As voting rights activists plot a post-Shelby County contingency strategy, they should both account for institutional intermediaries and think about the types of changes that could enhance the ability of these …

Blocking The Ballot: Why Florida’S New Voting Restrictions Demonstrate A Need For Continued Enforcement Of The Voting Rights Act Preclearance Requirement, Michael Ellement

Catholic University Law Review

No abstract provided.

Reimagining Democratic Inclusion: Asian Americans And The Voting Rights Act, Ming Hsu Chen, Taeku Lee

Publications

The current legal framework for protecting voting rights in the United States has been dramatically destabilized by Supreme Court decisions re-interpreting the protections against minority vote dilution and requires rethinking to survive modern challenges. At the same time, the nation has itself undergone dramatic changes in the racial composition of its polity and in the complexity and salience of race as a factor in political life. In this paper, we focus on a relatively unexamined constituent of this complex reality of modern racial diversity that illustrates some of the core features that all minority groups face in continuing VRA challenges: …

May I See Your Id? How Voter Identification Laws Disenfranchise Native Americans' Fundamental Right To Vote, Sally Harrison

American Indian Law Review

No abstract provided.

A Cure Worse Than The Disease?, Ellen D. Katz

Articles

The pending challenge to section 5 of the Voting Rights Act insists the statute is no longer necessary. Should the Supreme Court agree, its ruling is likely to reflect the belief that section 5 is not only obsolete but that its requirements do more harm today than the condition it was crafted to address. In this Essay, Professor Ellen D. Katz examines why the Court might liken section 5 to a destructive treatment and why reliance on that analogy in the pending case threatens to leave the underlying condition unaddressed and Congress without the power to address it.

What Was Wrong With The Record?, Ellen D. Katz

Articles

Shelby County v. Holder offers three reasons for why the record Congress amassed to support the 2006 reauthorization of the Voting Rights Act (VRA) was legally insufficient to justify the statute's continued regional application: (1) the problems Congress documented in 2006 were not as severe as those that prompted it to craft the regime in 1965; (2) these problems did not lead Congress to alter the statute's pre-existing coverage formula; and (3) these problems did not exclusively involve voter registration and the casting of ballots.

South Carolina's 'Evolutionary Process', Ellen D. Katz

Articles

When Congress first enacted the Voting Rights Act (VRA) in 1965, public officials in South Carolina led the charge to scrap the new statute. Their brief to the Supreme Court of the United States described the VRA as an “unjustified” and “arbitrary” affront to the “Equality of Statehood” principle, and a “usurp[ation]” of the State’s legislative and executive functions. Not surprisingly, the Warren Court was unpersuaded and opted instead to endorse broad congressional power to craft “inventive” remedies to address systematic racial discrimination and to “shift the advantage of time and inertia from the perpetrators of evil to its victims.” …

Shelby County V. Holder: Why Section 2 Matters, Ellen D. Katz

Articles

Editor’s Note: Professor Ellen D. Katz writes and teaches about election law, civil rights and remedies, and equal protection. She and the Voting Rights Initiative at Michigan Law filed a brief as amicus curiae in Shelby County v. Holder, on which the U.S. Supreme Court heard oral arguments February 27. Here, she examines why Section 2 of the Voting Rights Act bears consideration in the case, which involves a challenge to Section 5 of the act.

Reinventing Sovereignty?: Federalsim As A Constraint On The Voting Rights Act, Franita Tolson

Vanderbilt Law Review

The legal landscape has changed significantly since Congress passed the Voting Rights Act of 1965 ("VRA" or "the Act"). Even though Congress amended the Act in 2006, these amendments have done little to address the new obstacles faced by minority communities who seek to expand their electoral opportunities.' Some of these obstacles are political, as partisan forces have often manipulated the Act for electoral gain, but the greatest obstructions have been judicial. The Supreme Court has strongly implied that Congress might violate principles of federalism by requiring states to preclear their redistricting plans with the Department of Justice; has held …

Is This The Beginning Of The End Of The Second Reconstruction?, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This article discusses the history, present, and possible future of the Voting Rights Act.

Shelby County V. Holder And The Voting Rights Act: Getting The Right Answer With The Wrong Standard, Michael James Burns

Catholic University Law Review

No abstract provided.

On Overreaching, Or Why Rick Perry May Save The Voting Rights Act But Destroy Affirmative Action, Ellen D. Katz

Articles

The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is now defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose in bothTexas v. Holder andFisher v. University of Texas because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely …

Democrats At Doj: Why Partisan Use Of The Voting Rights Act Might Not Be So Bad After All, Ellen D. Katz

Articles

In notable ways, the ongoing dispute over redistricting in Texas offers a mirror image to one of the major redistricting battles of the last decade, only with Democratic and Republican roles reversed. In both Texas v. United States and Georgia v. Ashcroft, a state attorney general (AG) decided he would not ask the United States Department of Justice (DOJ) to approve new redistricting plans enacted in his state. In both cases, the state AGs were well aware that the Voting Rights Act (VRA) required them to obtain federal approval, known as preclearance, before changing any aspect of their state's election …

Voting Equality And Educational Equality: Is The Former Possible Without The Latter And Are Bilingual Ballots A Sensible Response To Education Discrimination?, Meaghan Field

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.