The Voting Rights Act in Winter: The Death of a Superstatute

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, The Voting Rights Act in Winter: The Death of a Superstatute, Univ. Ind. Legal Studies Research Paper No. 278 (2014).

Abstract:  The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the superstatute we once knew as the VRA is no more and never to return. If so, we need to figure out what, if anything, can, will, or should replace it. But before figuring out where to go from here, we need to first understand how we arrived at the moment of the VRA’s disintegration so as not to repeat the mistakes of the not too distant past. In this article we argue that the VRA is dying because the consensus over the existence and persistence of racial discrimination in voting has dissolved. We outline three paths for the future of voting rights policy: rebuilding a new consensus over the racial discrimination model; forging a new consensus over what we call an autonomy model; or reconceiving voting rights in universal terms.

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State’s Rights, Last Rites, and Voting Rights

Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer, State’s Rights, Last Rites, and Voting Rights (2014) (forthcoming Nw. Univ. L. Rev.), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377475.

Abstract:  There are two ways to read the Court’s decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, 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 and voting. Third, the Court and Congress have understood that racial discrimination is the problem and have operated from a similar conception of what racial discrimination means. Shelby County undermines all three assumptions. We explore what this means for voting rights policy, law, and jurisprudence going forward.

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Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics

Bertrall L. Ross II, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics, 101 Calif. L. Rev. 1565 (2013).

Abstract:  Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court has simply become more conservative. But what underlies this conservatism? In this Article, I argue that the Court’s own evolving conception of politics underlies the changes in the meaning of equal protection. In the past, the Court saw politics through the lens of pluralist theory, the crucial defect of which was the risk that minorities would be politically marginalized. That understanding has given way to a public choice conception in which the Court presumes these same minorities to be too politically powerful. In essence, one form of judicial distrust of democratic politics has replaced another.

I argue that two primary sources produced this renewed distrust: changing conservative views of the position of minorities in politics and a conservative legal movement that rejected pluralism in favor of public choice theory as the most accurate description of the operation of politics. I conclude by identifying important normative questions that this theory raises for constitutional law scholars and by offering a prescription for civil rights advocates seeking to influence judicial interpretations of the Equal Protection Clause.

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The Year of the Super PAC

Michael S. Kang, The Year of the Super PAC, 81 Geo. Wash. L. Rev. 1902 (2013).

Abstract:  2012 was the year of the Super PAC. In the first presidential election cycle since their development, Super PACs raised almost one billion dollars and enabled the very wealthy to channel money into campaigning like never before during the post-Watergate era. However, still so early in the Super PAC’s evolution, 2012 offered only a taste of what comes next. Super PACs of the future will not serve merely as voice amplifiers for candidates and parties, as they typically seemed in 2012. Super PACs, and related 501(c) entities, enable very wealthy individuals to avoid the usual coordination costs of mass politics and bypass the major parties, a capacity that they will learn to exploit for their independent ends.

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Political Law

 Spencer Overton, Political Law, 81 Geo. Wash. L. Rev. 1783 (2013).

Abstract:  Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community” — a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington University Law School’s Political Law Symposium, which brought together a diverse group in an attempt both to advance political law as a field and to build political law community.

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Unteachable: Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act

Kareem U. Crayton and Terry Smith, Unteachable:  Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act (2013), available at http://ssrn.com/abstract=2361495.

Abstract:  In this paper, we analyze the Supreme Court’s decision in Shelby County, Alabama v. Holder, which declared unconstitutional the coverage formula for Section 5 preclearance. We conclude that Shelby County is a radical departure not only from the Supreme Court’s Voting Rights Act jurisprudence but also from canons of statutory construction more generally. While the Court’s decision has adverse implications for both separation of powers doctrine and minority voting rights, the authors propose an expeditious fix to the coverage formula that would likely pass constitutional muster.

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Sore Loser Laws and Congressional Polarization

Barry C. Burden, Bradley Jones & Michael S. Kang, Sore Loser Laws and Congressional Polarization (2013), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354168.

Abstract:  To enhance explanations for party polarization in the U.S. Congress, we focus on an unappreciated legal structure known as the sore loser law. By restricting candidates who lose partisan primaries from subsequently appearing on the general election ballot as independents or nominees of other parties, these laws give greater control over ballot access to the party bases, thus producing more extreme major party nominees. Using several different measures of candidate and legislator ideology, we find that sore loser laws account for as much as a tenth of the ideological distance between the major parties.

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