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Journal ArticleDOI

Shelby County v. Holder and the gutting of federal preclearance of election law changes

08 Aug 2014-Politics, Groups, and Identities (Routledge)-Vol. 2, Iss: 3, pp 530-548
TL;DR: The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder as mentioned in this paper, which required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in their electoral processes.
Abstract: The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder. This provision required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in their electoral processes. This essay identifies the crucial prophylactic role the provision played in preventing the implementation of vote denial and vote dilution practices in southern states. It provides an overview of the various reauthorizations of the provision, with particular attention to the latest in 2006, and a critical review of the Supreme Court's response to it. Special attention is devoted to the social science evidence relied upon by Congress in that reauthorization and by the Court in its response to it.
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Journal ArticleDOI
TL;DR: This paper found that judges adjust their behavior based on the judges with whom they serve, and that panel effects are traditionally described in terms of preferences, with torsional preferences being defined as preferences.
Abstract: Work on the Courts of Appeals has found that judges adjust their behavior based on the judges with whom they serve. These “panel effects” are traditionally described in terms of preferences, with t...

4 citations

Posted Content
TL;DR: A more expansive use of Section 3(c) pre-clearance to continue federal oversight of election procedures was suggested in this article, by relating more closely to current conditions in a specific locality, avoiding many of the problems the Court identified in NAMUDNO and Shelby County.
Abstract: The Supreme Court's decision in Shelby County v. Holder presents voting rights advocates with a difficult challenge: finding an effective substitute for the preclearance regime struck down by the Court. The best possible alternative may live within the Voting Rights Act itself in Section 3(c)'s "pocket trigger." Section 3(c) permits a federal court to retain jurisdiction and preclear a jurisdiction's changes to its voting procedures upon a finding of a constitutional violation. By relating more closely to current conditions in a specific locality, Section 3(c) preclearance avoids many of the problems the Court identified in NAMUDNO and Shelby County.This Note analyzes the history of Voting Rights Act litigation and suggests a more expansive use of Section 3(c) preclearance to continue federal oversight of election procedures.

2 citations

Posted Content
TL;DR: For example, the doctrine of one last chance as discussed by the authors has been used by the Roberts Court to avoid major constitutional challenges to the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws.
Abstract: Constitutional avoidance is an old idea, but the Roberts Court has given it a new twist. Instead of avoiding constitutional questions whenever possible, recent Supreme Court majorities have tended to engage in avoidance just once before issuing disruptive decisions. For example, the Roberts Court initially ducked constitutional challenges to central pillars of the Bipartisan Campaign Reform Act and the Voting Rights Act. But when those measures came before the Court for a second time, they were both struck down as unconstitutional, despite their importance and bipartisan support. A similar pattern of limited deferral may be visible in other recent cases, as the Roberts Court has taken a pass on its first opportunities to strike at the Affordable Care Act, affirmative action in higher education, and same-sex marriage laws. This emerging use of constitutional avoidance might be called “the doctrine of one last chance.” Under this doctrine, the Court must signal its readiness to impose major disruptions before actually doing so. Put more colorfully, the doctrine of one last chance is avoidance on steroids, but with an expiration date. The result is a practical rule of judicial decision-making — an attempt not just to extol the dueling virtues of judicial action and restraint, but to balance them. And the balance is attractive. Here as elsewhere, there is good reason to afford notice and postpone decision before causing massive and potentially unexpected disruptions. Still, the doctrine should give us pause: by facilitating major legal change, the doctrine of one last chance converts a cornerstone principle of judicial restraint into a playbook for judicial action.

1 citations

Journal ArticleDOI
TL;DR: The Articles of Confederation were adopted by the Second Continental Congress in 1777 and went into effect in 1781 as mentioned in this paper, however, they were soon found inadequate for smooth governmental operations.
Abstract: The Articles of Confederation were adopted by the Second Continental Congress in 1777 and went into effect in 1781. They were soon found inadequate for smooth governmental operations, particularly ...

1 citations

References
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Journal ArticleDOI
TL;DR: The authors found that non-voters who are politically engaged and equipped with politically relevant resources consistently misreport that they voted, which cannot be explained by faulty registration records, which they measure with new indicators of election administration quality.
Abstract: Social scientists rely on surveys to explain political behavior. From consistent overreporting of voter turnout, it is evident that responses on survey items may be unreliable and lead scholars to incorrectly estimate the correlates of participation. Leveraging developments in technology and improvements in public records, we conduct the rst ever fty-state vote validation. We parse over-reporting due to response bias from overreporting due to inaccurate respondents. We nd that non-voters who are politically engaged and equipped with politically relevant resources consistently misreport that they voted. This nding cannot be explained by faulty registration records, which we measure with new indicators of election administration quality. Respondents are found to misreport only on survey items associated with socially desirable outcomes, which we nd by validating items beyond voting, like race and party. We show that studies of representation and participation based on survey reports dramatically mis-estimate the dierences between voters and non-voters.

302 citations

Reference EntryDOI
22 Nov 2016

302 citations


"Shelby County v. Holder and the gut..." refers background in this paper

  • ...They considered Congress’s concern about second-generation discrimination to be a legitimate interest, finding that “the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions” (2651). The dissenting opinion recited evidence in the record of, among other things, the number of preclearance objections issued by the DOJ increasing from 490 between the adoption of the VRA and the 1982 reauthorization of it, to 626 between that reauthorization and 2004 (2639), with the number of specific changes precluded from implementation exceeding 700 from 1982 to 2006 (2639). It also recited that, from 1982 to 2006, over 100 lawsuits were successful at forcing jurisdictions to submit changes for preclearance during that period (2639)....

    [...]

  • ...They considered Congress’s concern about second-generation discrimination to be a legitimate interest, finding that “the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions” (2651). The dissenting opinion recited evidence in the record of, among other things, the number of preclearance objections issued by the DOJ increasing from 490 between the adoption of the VRA and the 1982 reauthorization of it, to 626 between that reauthorization and 2004 (2639), with the number of specific changes precluded from implementation exceeding 700 from 1982 to 2006 (2639)....

    [...]

  • ...As a consultant on voting rights matters to covered jurisdictions in the South, the author has personally witnessed jurisdictions avoiding changes in their election systems that were likely to draw objections to preclearance and efforts to design changes so that they would satisfy preclearance requirements. 21. A small percentage of rejected changes should not be a surprise, given that all changes were subject to preclearance, including changes the Court considered in NAMUDNO to be “innocuous” (202). This would include changes like altering precinct lines, changing the locations of polling places within precincts, and other administrative actions in implementing elections. According to Solicitor General Donald B. Verrilli, changes in the locations of polling places have been the most frequent changes submitted (Shelby County Supreme Court Hearing, 27 February 2013, Transcript at 36). While such changes could have a chilling effect on minority participation, a very low percentage of them would be expected to be objectionable. 22. These CPS results before Congress of course preceded the elections in which Barack Obama was the Democratic candidate for President. 23. This was not the case in South Carolina if the comparison was to non-Latino whites. The inclusion of Latinos in the estimates for whites tends to lower the estimate for whites. 24. The Blum and Campbell report was also cited by Justice Thomas in his dissenting opinion (227). He also relies on CPS estimates in the Senate Report on the VRARA to identify Georgia and North Carolina as among states in which African-American registration and turnout rates were higher than those for whites in 2004. Validated data in these states again show the opposite to be true (Bullock and Gaddie 2006a, 9, 35 and 2006c, 21; see also Engstrom 2011, 55). For additional results revealing this type of discrepancy between estimates based on the reported data in the CPS and validated state data, see Table 1, taken from Engstrom (2011). 25. The majority noted the “fixes” for the Ashcroft and Bossier II cases contained in the 2006 reauthorization, although it did not acknowledge them as such. On the contrary, it noted that as a result of them “the bar that covered jurisdictions must clear has been raised even as the conditions justifying that requirement have dramatically improved” (2627). In short, by clarifying the proper interpretation of the statute Congress, the majority said, exacerbated the Court’s problem with it....

    [...]

  • ...As a consultant on voting rights matters to covered jurisdictions in the South, the author has personally witnessed jurisdictions avoiding changes in their election systems that were likely to draw objections to preclearance and efforts to design changes so that they would satisfy preclearance requirements. 21. A small percentage of rejected changes should not be a surprise, given that all changes were subject to preclearance, including changes the Court considered in NAMUDNO to be “innocuous” (202). This would include changes like altering precinct lines, changing the locations of polling places within precincts, and other administrative actions in implementing elections. According to Solicitor General Donald B. Verrilli, changes in the locations of polling places have been the most frequent changes submitted (Shelby County Supreme Court Hearing, 27 February 2013, Transcript at 36). While such changes could have a chilling effect on minority participation, a very low percentage of them would be expected to be objectionable. 22. These CPS results before Congress of course preceded the elections in which Barack Obama was the Democratic candidate for President. 23. This was not the case in South Carolina if the comparison was to non-Latino whites. The inclusion of Latinos in the estimates for whites tends to lower the estimate for whites. 24. The Blum and Campbell report was also cited by Justice Thomas in his dissenting opinion (227). He also relies on CPS estimates in the Senate Report on the VRARA to identify Georgia and North Carolina as among states in which African-American registration and turnout rates were higher than those for whites in 2004. Validated data in these states again show the opposite to be true (Bullock and Gaddie 2006a, 9, 35 and 2006c, 21; see also Engstrom 2011, 55). For additional results revealing this type of discrepancy between estimates based on the reported data in the CPS and validated state data, see Table 1, taken from Engstrom (2011). 25. The majority noted the “fixes” for the Ashcroft and Bossier II cases contained in the 2006 reauthorization, although it did not acknowledge them as such. On the contrary, it noted that as a result of them “the bar that covered jurisdictions must clear has been raised even as the conditions justifying that requirement have dramatically improved” (2627). In short, by clarifying the proper interpretation of the statute Congress, the majority said, exacerbated the Court’s problem with it. 26. Justice Ginsburg has continued her attack on the decision off the bench, stating in her Remarks for Second Circuit Judicial Conference that “Like the currently leading campaign finance decision, Citizens United v. Federal Election Commission, I regard Shelby County as an egregiously wrong decision that should not have staying power”, at 7, 13 June 2014. 27. See text, at supra. n. 14. 28. H.R. 3899, 113th Cong. (2014) and S. 1945, 113th Cong. (2014). 29. States expected to be captured by this trigger are Georgia, Louisiana, Mississippi, and Texas. 30. Turnout rates are to be based on citizen voting age population and are to be determined by the Attorney General based on “scientifically accepted statistical methodologies,” which hopefully will not include self-reported voting. The “persistent and extremely low minority turnout” condition is satisfied if any one of a number of criteria specified in Section 4 of the VRAA are met. 31. This exemption is reportedly included to gain Republican support for the bill (Yeomans 2014, 2). For a useful review of all of the provisions in the bill, see (Yeomans et al. 2014). 32. For other proposed changes in the coverage formula, see Grofman (2013) and Trahan-Liptak (2014)....

    [...]

  • ...The state argued that to require the changes to be precleared would violate rights reserved to the states in our federal system. The Court majority, in Lopez v. Monterey County [525 U.S. 266 (1999)], held there was “no merit to the claim” (283)....

    [...]

01 Jan 2005
TL;DR: A 1997 community forum of the Vermont Advisory Committee on racial harassment in Vermont public schools as discussed by the authors found that racial harassment was pervasive in and around Vermont's public schools, and elimination of this harassment was not a priority; coordinated leadership by elected officials, business leaders, and education officials was needed to improve racial relations.
Abstract: This report presents information from a 1997 community forum of the Vermont Advisory Committee on racial harassment in Vermont public schools. Parents, students, teachers, administrators and community and advocacy group representatives offered their views on racial harassment in the public schools, describing them as hostile and unfriendly places wherein racial slurs, epithets, and physical assaults occurred. The committee concluded that: racial harassment was pervasive in and around Vermont's public schools, and elimination of this harassment was not a priority; coordinated leadership by elected officials, business leaders, and education officials was needed to improve racial relations; existing state law was deficient in addressing these problems; staff shortages and limited resources available to the Vermont Department of Education made it difficult for the Department to set the elimination of racial harassment as a statewide priority; and the Vermont Human Rights Commission had insufficient resources to effectively address reported racial harassment incidents. Recommendations for each of these problems are presented. Relevant letters, policy, and legislation are appended. (SM)

109 citations

Journal ArticleDOI
TL;DR: The more extensive use of at-large elections and the greater disparity in politically relevant socioeconomic resources each have been cited as the primary reason why blacks are underrepresented more severely on city councils in the South than on those outside the South as discussed by the authors.
Abstract: The more extensive use of at-large elections and the greater disparity in politically relevant socioeconomic resources each have been cited as the primary reason why blacks are underrepresented more severely on city councils in the South than on those outside the South. These two explanations for the regional difference in black councilmanic representation are compared through a design which treats electoral arrangements and resource disparities as specifying variables affecting the rate at which minority votes convert into minority council members. The findings show that the more severe underrepresentation in the South is explained best by the differences in electoral arrangements.

55 citations

Book
01 Jul 1972

46 citations