Shelby v. Holder

see title V VRA

see Roberts clarence clerk pro bono

pjt for fair rep ed blum

see voter suppression

---

doj sued illegal alien BS

msnbc 10 24

two states dumping sweater vest gov youngkin if discrepnancy in dmv recs; only possible b/c scotus gutted voting rts act which req pre-clearance of fuckery

omfg shelby title V was hit/scalp

https://publicintegrity.org/politics/news-outlets-unearth-more-donors-trust-recipients/

donors use charity to push free-market policies in states

By Paul Abowd

February 14, 2013

Charity acts as screen for conservative foundations that feed network of state-based think tanks, media outlets.

Virginia-based charity Donors Trust has promised anonymity to donors who seek to fund “sensitive or controversial” issues.

A Center for Public Integrity report last week lifted that veil — at least partially — revealing dozens of conservative foundations that together in recent years have given tens of millions of dollars to Donors Trust .

Donors Trust, in turn, has funded a nationwide network of free-market think tanks, media outlets and university programs to the tune of nearly $400 million since 2002.

Recently, much of that funding has gone toward state-based policy efforts. For example, Donors Trust provided 95 percent of the funding for a conservative media clearinghouse called the Franklin Center for Government and Public Integrity, which runs a network of state-based blogs.

While many of the charity’s 193 donors remain anonymous, a variety of media reports have shown where Donors Trust money ends up:

Climate change-denial

In late February, The Guardian GUK reported that 46 percent of Donors Trust grants in 2010 went to groups opposing climate science. Between 2002 and 2010, the group gave $118 million to about 100 such groups.

A detailed 2012 report published on DeSmog Blog ties Donors Trust to a vast climate science denial machine through its generous support for theHeartland Institute, a Chicago-based think tank that mobilized support for the tobacco industry before shifting its focus to climate change. BUCHHOLTZ?]

An October episode of PBS Frontline said Donors Trust has become “the number one supporter” of climate denial groups like Heartland and the Koch brothers-funded Americans for Prosperity after industry giants such as ExxonMobil curtailed funding to Heartland following public protest.

Islamic radicalism

Donors Trust made its largest grant in 2007 to a New York-based group called Clarion Fund. The $17 million donation went toward the production of a documentary called “Obsession: Radical Islam’s War Against the West.”

Seven weeks before the 2008 election of Barack Obama as president, Clarion distributed millions of copies of the movie, which stirred fear about Islamic radicalism, by inserting DVDs as ads in daily newspapers nationwide.

Reports later suggested that Chicago businessmanBarry Seid may have passed the $17 million through Donors Trust to Clarion. Seid and Donors Trust director Whitney Ball co-chair another foundation called Chicago Freedom Trust.

Academic coups?

In 2010, a free-market professor of economics whose research is funded through Donors Trust laid out his “Free State” plan for libertarians to migrate to and take over the state of New Hampshire.

In 2009, Donors Trust passed about $600,000 in donations to Shimer Collegewhile conservative Chicago businessmen, including Seid, attempted unsuccessfully to take control of the small liberal arts school.

‘Fair representation’

A Donors Trust subsidiary called the Project for Fair Representation has led legal challenges to affirmative action programs and, more recently, to the Voting Rights Act, according to reports by Reuters and The New York Times.

The project sought out and tapped the majority-white Shelby County, Ala., as plaintiffs in a challenge to Section 5 of the Act,which gives the U.S. Department of Justice power to approve or reject changes to electoral laws in 16 states, mostly in the south. The case will be heard by the U.S. Supreme Court.

an 920

US Civil Rights Commission shelves recommendations for protecting voter rights in November

2nd or 3rd time pro gerry?!

https://www.alternet.org/2022/02/scotus-voting-rights/

 in 2013 **Supreme Court Chief Justice John Roberts** effectively declared racism in America was over, as he penned the majority opinion in Shelby County v. Holder,a case that neutered the historic Voting Rights Act of 1965.

On Monday Chief Justice Roberts sided with the Court’s three remaining liberals in a case that pounded yet another nail in the coffin of the Voting Rights Act.

University of Michigan Law School Asst. Law Professor Leah Litman, commenting on the just-released Supreme Court decision writes: “One way of understanding how radical this step is: It is a position on voting rights/the voting rights act that is SO EXTREME, the author of Shelby County v. Holder (the decision invalidating the preclearance regime) did not join it. They _lost John Roberts_ on voting rights.”

On Monday conservatives (except Roberts) on the Court decided to allow a racially unfair congressional district map “even though a lower court said it violated the Voting Rights Act by denying Black voters a new district,” as NBC News reports.

The Economist’s Steven Mazie, who covers the Supreme Court writes:

an 921 salon

Decades of strategizing by anti-abortion forces and a relentless conservative focus on winning the courts culminated this month in the U.S. Supreme Court's 5-4 decision to allow the nation's most restrictive rollback of reproductive rights to go into effect. The decision effectively prohibits most abortions in Texas and provides a road map for red state legislatures nationwide to evade judicial review and undo Roe v. Wade in their states as well.

But that wasn't the only careful right-wing project that contributed to this back-door assault on five decades of constitutional protections and Supreme Court precedent. This decision is inextricably bound to the long-term GOP war on voting rights, itself a two-front effort between red state legislatures and a conservative Supreme Court majority.

You might even call it a Texas two-step. First, unelected, tenured judges did what elected Republicans didn't feel empowered to do in 2006 and put a stake into the Voting Rights Act. Then, after blessing a new generation of sophisticated voter suppression methods, as well as providing a green light for partisan and racial gerrymanders, uninhibited lawmakers — untethered from nearly any accountability — can pass laws dramatically out of step with voters, like the new Texas abortion bill. This court then smiles on those efforts as well. (And of course, all this is amplified and encouraged by the right-wing media ecosystem.)

It's a nifty closed loop that has the added benefit of sheltering Republicans from any consequences for their extremism, and from any real fear that a changing electorate will threaten entrenched one-party rule.

This isn't even the first time that the Supreme Court and Texas legislature have danced in this fashion, though nearly a decade ago, it was the Roberts court that led.

When Chief Justice John Roberts authored a 5-4 decision in the 2013 Shelby County case, hobbling the Voting Rights Act and putting an end to pre-clearance in states, like Texas, that had a longstanding history of racially motivated voting chicanery, Texas did not wait long before showing America that, contrary to Roberts' sense that things were "dramatically" different in the South, in reality little had changed.

That very afternoon, Texas jumped to take advantage of Roberts' decision by enacting a deeply restrictive voter ID law that requires specific forms of identification to vote. This would be the first post-Shelby voting restriction in Texas, but hardly the last. The new law demanded an ID that 600,000 Latino citizens lacked; it allowed a ballot to be cast with a gun license but not a student ID. It enabled Republicans to place barriers before the rising electorate of young and Hispanic voters who lean Democratic and help ensure themselves a hold on power.

It was a magnificent two-step. When a Republican Congress reauthorized the Voting Rights Act in 2006, nearly unanimously, and the 25-year extension was signed into law by President George W. Bush, GOP leaders whipped the votes for passage, fearing that it would be bad for the Republican brand to be seen as hostile to voting rights. It's a story that Jesse Rhodes tells brilliantly in his book "Ballot Blocked." GOP leaders wanted to make inroads with Latino and Black voters, and worried that Hurricane Katrina and the souring economy and Iraq war might make that a challenge during a tough midterm year. They didn't want to also be seen as keeping minorities from the polls.

So the voting rights putsch was outsourced to the courts. Bush appointed, and the GOP Senate confirmed, two Supreme Court justices known to have a very limited view of the Voting Rights Act's scope and relevancy: Roberts as chief justice and Samuel Alito to replace the retiring Sandra Day O'Connor. Roberts, as a young Justice Department official in the Reagan administration, had lobbied aggressively against the 1982 reauthorization of the VRA.

When the court did the GOP's dirty work, hollowing out the pre-clearance mechanism that Republicans viewed as untenable to take on through the political process, the Roberts decision offered Congress the option to revisit and update the pre-clearance formula. But once the courts had dealt its blow, the Republican majority had no appetite to revisit the VRA and those efforts crashed in Congress. That's the case to this day: When the Democratic House voted on the John Lewis Voting Rights Advancement Act earlier this summer, every House Republican opposed the bill, and it would appear to have little chance of surviving a GOP filibuster in the Senate.

Texas Republicans may well have seen the Shelby County decision coming when they passed a draconian voter ID bill — initially blocked under pre-clearance in 2012 — ahead of the court's ruling. During that same period, Republican lawmakers also prepped new state legislative and congressional maps that were the subject of much complicated litigation from 2011 through 2018.

The legal history here becomes convoluted: Courts originally blocked the first maps enacted by Republicans in 2011. A federal court rejected them under pre-clearance, finding that these lines made it tougher for minority voters to elect a candidate of their choosing. As the 2012 elections neared, a three-judge panel ordered tweaks to the legislative maps — but these were supposed to be temporary fixes while the legal challenges worked their way through the courts.

But when the Shelby decision came down, as the Texas Tribune observed, Texas suddenly no longer needed to pre-clear its maps. Republican leaders disingenuously cloaked themselves in a map they could claim was drawn by the courts, when really those judges had only approved the first step in a much longer process. How could we be diluting minority voters, the state protested, when we just took the courts' map? Lower federal courts disagreed, and developed a rich evidence file that delved deep into the 2011 mapmaking process and referred to the 2013 GOP strategy as "discriminatory at its heart."

Once again, however, the Supreme Court stepped in. In 2018's Abbott v. Perez, the Supreme Court overturned those lower court decisions that found Republicans had diluted minority votes in multiple state house districts. They OK'd what had been called a racial gerrymander of the state legislature which judges said went "out of its way" to preserve GOP power at the expense of Latino voting power, with "serious costs to our democracy."

That 5-4 decision, written by Justice Alito, insisted that when it comes to redistricting, the good faith of the legislature must be assumed. Alito blithely dismissed a 150-page lower court reportthat laid out, county by county, the precise machinations that Republican mapmakers used to crack and pack growing numbers of Latino voters, and even a careful study of which Latino voters were most likely to turn out. (Those unlikely to vote could also be carefully distributed in order to make districts appear to resemble a "minority opportunity" district, without actually being one.)

In her dissent, Justice Sonia Sotomayor accused the majority of ignoring "undeniable proof of intentional discrimination," contributing to the deliberate underrepresentation of minority voters and doing "great damage" to both equal opportunity and equal participation in the political process. The majority decision, she wrote, "blinds itself to the overwhelming factual record" in order to "allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters."

Texas isn't a red state or a blue state. It's a voter suppression state, with some of the lowest turnout numbers in the country, in part because the state — with the full support of the U.S. Supreme Court, since the 2013 Shelby County case — makes it so difficult to vote. By 2014, Texas turnout had plunged to the lowest in the nation, just 28.3 percent according to the Elections Project. A sexy 2018 U.S. Senate race between Ted Cruz and Beto O'Rourke helped push that number higher, but the Elections Project still found Texas mired among the lowest 10 states in the nation.

Political scientists will long debate the impact of redistricting, voter ID laws and other restrictive techniques, as well as the Roberts court's rulings on the VRA and gerrymandering, on the democratic backsliding that has become a feature of so many red state legislatures and contributed to the growing crisis of GOP minority rule. But no one needs an advanced degree to see the effects of this two-step on extreme legislation on reproductive rights, among other issues, coming from Texas, Ohio, Georgia, Alabama, Missouri and elsewhere — despite zero indication that voters in these states desire these new restrictions or have moved anywhere near as far right on these issues as their representatives.

Perhaps the problem is that this Supreme Court has made it exceptionally difficult for voters to get rid of their representatives when they go too far, and that this has emboldened lawmakers who no longer fear that their extremism might lead either to defeat or reproach from the courts. Indeed, this Supreme Court, under Alito's lead, has encouraged legislatures to go a step further. After the ruling on the Texas law, in which justices threw up their hands at the novel workaround created by empowering citizens to turn in anyone involved in making an abortion possible, the signal to every other state was this: Go as far as you want. This court has your back.

The message to the rest of the nation is clear as well. When voting rights are hollowed out, it opens the door to an assault on every right you hold dear and any policy that matters to you, whether that's reproductive rights, labor rights, gun control, the environment, or whether or not your kids can be asked to wear masks at school during a pandemic.

If voters want to change those policies, Samuel Alito says tough. He can't be voted out of office — and his colleagues just keep tilting the rules so your legislators can't be either.

As redistricting begins in state legislatures nationwide, Republican state legislators are building up their own walls of protection. If Democrats want to reverse course before a potential generation of GOP minority rule, 2022 could be the last chance. Congress must protect voting rights. And we all must prioritize state legislative and secretary of state races. We invest now to win next November — or the Texas two-step could be playing in your state next.

how much overturned by bill?

no lnx

Just one Republican breaks ranks to join the Democrats in passing new Voting Rights Advancement Act

Written by Jake Johnson / Common Dreams December 6, 2019

Just one Republican—Rep. Brian Fitzpatrick of Pennsylvania—joined a united House Democratic caucus on Friday to pass what rights groups hailed as “historic” legislation to restore and expand voter protections that were gutted by the Supreme Court in 2013.

Lisa Gilbert, vice president of legislative affairs for Public Citizen, said passage of the Voting Rights Advancement Act (H.R. 4) is a “critical step” in combating Republican voter suppression efforts that have proliferated in the six years since the Supreme Court’s infamous decision inShelby County v. Holder.

“Numerous state legislatures have undertaken targeted and deliberate steps to limit or impede the right to vote for communities of color, students, the elderly, and people with disabilities,” said Gilbert. “Americans who are eligible to vote but are denied that right due to fabricated or illegal barriers are being deprived of the full privilege of our democracy.”

BREAKING: The House just passed #HR4, one of the most important bills to emerge during this Congress. As voter suppression continues to spread across the US, this bill would breathe life back into the Voting Rights Act. A win for the people & a win for democracy! #RestoreTheVote pic.twitter.com/TR14b3ltxQ

— Kristen Clarke (@KristenClarkeJD) December 6, 2019

BREAKING: @RepBrianFitz is the one and only House Republican that believes in voting rights. https://t.co/37aqHMYIMO

— Public Citizen (@Public_Citizen) December 6, 2019

“If we want a true democracy, we must protect the right to vote for all,” said Rep. Pramila Jayapal (D-Wash.), co-chair of the Congressional Progressive Caucus. “The Voting Rights Advancement Act is critical to getting there.”

The legislation now heads to the Senate, which is controlled by Republicans. Senate Majority Leader Mitch McConnell (R-Ky.) has refused to allow a vote on Democrats’ For the People Act (H.R. 1), to which the Voting Rights Advancement Act was previously attached.

As Ari Berman of Mother Jones reported, H.R. 4—sponsored by Rep. Terri Sewell (D-Ala.)—would “initially cover 11 states: nine in the South, plus California and New York, which have more recently been found to discriminate against Latinos and Asian Americans.”

“The bill would also require all states to get federal approval for election changes that are known to disproportionately affect voters of color, such as strict voter ID laws, tighter voter registration requirements, and polling place closures in areas with large numbers of minority voters,” Berman noted.

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, applauded the House for passing H.R. 4 and demanded that McConnell bring the bill up for a vote in the Senate as soon as possible.

“The passage of H.R. 4 in the House of Representatives today brings us one step closer to restoring the Voting Rights Act and undoing the tremendous damage of Shelby,” Gupta said in a statement. “The VRAA is too important—and the right to vote is too fundamental—to end up buried in the McConnell legislative graveyard.”

==

http://www.prwatch.org/news/2013/03/11999/racial-entitlements-long-term-effort-end-voting-rights-act-and-affirmative-action

The U.S. Supreme Court may roll back two pillars of the civil rights era this term -- the Voting Rights Act of 1965 and affirmative action -- both of which have long been targeted by the right-wing and whose challenges are backed by the same set of deep-pocketed ideological funders.

Scalia Sees Voting Rights and Affirmative Action as "Racial Entitlements"

Wednesday's oral arguments in Shelby County v. Holder indicated hostility among some justices towards Section 5 of the 1965 Voting Rights Act (VRA), which requires states with a history of state-sanctioned racial discrimination to get federal pre-approval before implementing changes to their voting laws or procedures. Congress has renewed it four times since 1965 with significant bipartisan support, most recently in 2006, when every U.S. Senator voted for it.

But that support was "very likely attributable to a phenomenon that is called perpetuation of racial entitlement," Justice Antonin Scalia asserted from the bench. "Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes," he said, a characterization of the landmark civil rights law that was met with gasps in the courtroom.

This is not the first time Scalia has talked about "racial entitlements"-- and his perspective will almost certainly apply to another civil rights case in the Court's docket this term.

"To pursue the concept of racial entitlement -- even for the most admirable and benign of purposes -- is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred," he wrote [3] about affirmative action in a concurring opinion in the 1995 case Adarand Constructors v Pena, a decision that enacted a high bar for government affirmative action programs.

Chief Justice John Roberts has expressed similar support for so-called color-blindness under the law. "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," he wrote [4] in a 2007 case striking down the consideration of a student's race by school districts striving for diversity in schools in Seattle, Washington, and Louisville, Kentucky. Likewise, in a 2009 decision about the VRA, Roberts expressed a view that race matters less today, and therefore Section 5's federal pre-clearance requirement may no longer be justified since "things have changed in the South."

Roberts and Scalia have another bite at the affirmative action apple this term. In October, the Court heard oral arguments in Fisher v University of Texas, which challenges race-conscious university admission policies. Questioning from Chief Justice Roberts and Justice Scalia indicated the Court may have a five-justice majority to reverse parts of a 2003 ruling that allowed consideration of race in college admissions (a decision that came before President George W Bush named two justices to the court).

The statements from these justices on affirmative action and voting rights reflect a view that race plays little role in America today (! [5]), or at least that it should no longer be acknowledged under the law. In fact, "explicit anti-black attitudes" have actually increased [6] over the past four years, particularly among Republicans, according to research by social scientists at Brown and the University of Michigan.

If the Court sides with plaintiffs in Fisher and Shelby County, it would be a victory for the right, which for decades has been laying the groundwork for rolling-back these sorts of progressive gains by adopting the terminology of "color-blindness."

Long-Standing Opposition to Affirmative Action, Section 5

Both the VRA and affirmative action grew out of the civil rights struggle of the 1960s, and have been targeted for reversal ever since by generations of reactionaries.

President Lyndon Johnson's support for the 1964 Civil Rights Act and the 1965 Voting Rights Act led to realignments within America's two major political parties. Southern Democrats like "Dixiecrat" Senator Strom Thurmond of South Carolina defected to the Republican Party, and over time many voters who had long supported "the Party of Lincoln" shifted their allegiance to Democrats.

Ronald Reagan's opposition to civil rights programs, for example, was a key part of his effort to win the presidency by appealing to the racial views of white Southern voters. He famously kicked-off his successful presidential bid by declaring his support for "state's rights" at a Mississippi event held just a few miles from where three civil rights activists were murdered in 1964. "States rights" had been a rallying call for Southern states opposing Brown v. Board of Education and the end of racial segregation, and provided a facially neutral way to oppose the VRA's Section 5 federal pre-clearance requirements. He called the VRA "humiliating to the South" and described affirmative action as a form of "reverse discrimination" where whites are "victims." As legendary campaign consultant Lee Atwater acknowledged [7] after the campaign, the way Reagan discussed voting rights and affirmative action was part of a careful effort to garner the votes of white Southerners by using "abstract" and coded language to avoid express racism.

Once elected, Reagan stopped enforcing several affirmative action programs, and his Justice Department began filing amicus briefs in support of white men claiming injury from the programs. In 1982, when the Voting Rights Act was up for reauthorization, John Roberts was working for the Reagan Administration and argued for [8] a watered-down version of the law. After Congress rejected the administration's efforts and passed a strengthened VRA with bipartisan support, a hesitant Reagan nonetheless signed the reauthorization -- prompting Roberts to write [9] "we were burned." President Reagan also appointed U.S. Supreme Court Justices who passed the litmus tests of a narrow view of affirmative action and civil rights laws: Antonin Scalia and Anthony Kennedy, who are still on the Court, as well as William Rehnquist and Sandra Day O'Connor.

Right-Wing Institutions Laid Groundwork

Part of the long-term success of modern Republicanism, which grew out of opposition to the civil rights gains of the 1960s, is attributable to the development of a network of right-wing funders and well-funded institutions starting in the mid-1970s. For example, in 1973, legendary right-wing activist Paul Weyrich co-founded both the American Legislative Exchange Council (ALEC) and the Heritage Foundation....

==

scotus

Attorney(s) appearing for the Case

Bert W. Rein, for Petitioner.

Donald E. Verrilli, Jr., Solicitor General, for Federal Respondent.

Debo P. Adegbile, for Respondents Bobby Pierson, et al.

Frank C. Ellis, Jr., Wallace, Ellis, Fowler, Head & Justice, Columbiana, AL,Bert W. Rein, William S. Consovoy, Thomas R. McCarthy, Brendan J. Morrissey, Wiley Rein LLP, Washington, DC,for Petitioner.

:{

}:

http://www.shelbycountyreporter.com/2015/03/02/ellis-head-owens-and-justice-has-long-distinguished-history/

Kim Keenan, Victor L. Goode, Baltimore, MD, Arthur B. Spitzer, Washington, D.C., David I. Schoen, Montgomery, AL, M. Laughlin McDonald, Nancy G. Abudu, Atlanta, GA, Steven R. Shapiro, New York, NY, for Respondent-Intervenors Bobby Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth Dukes, and Alabama State Conference of the National Association for the Advancement of Colored People.

Sherrilyn Ifill, Director-Counsel, Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, Leah C. Aden, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Joshua Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Of Counsel: Samuel Spital, William J. Honan, Harold Barry Vasios, Marisa Marinelli, Robert J. Burns,Holland & KnightLLP, New York, NY, for Respondent-Intervenors Earl Cunningham, Harry Jones, Albert Jones, Ernest Montgomery, Anthony Vines, and William Walker.

Donald B. Verrilli, Jr., Solicitor General, Thomas E. Perez, Assistant Attorney General, Sri Srinivasan, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Diana K. Flynn, Erin H. Flynn, Attorneys,Department of Justice, Washington, D.C., for Federal Respondent.

Jon M. Greenbaum, Robert A. Kengle, Mark A. Posner, Maura Eileen O'Connor, Washington, D.C., John M. Nonna, Patton Boggs LLP, New York, NY, for Respondent-Intervenor Bobby Lee Harris.

==

https://www.oyez.org/cases/2012/12-96

• ## Fisher v. University of Texas (2015)
• ## Fisher v. University of Texas (2012)
• ## Shelby County v. Holder (2012)

• "Bert W. Rein." 
• :{

}:

ADVOCATES

Bert W. Reinfor the petitioner

Donald B. Verrilli, Jr.Solicitor General, Department of Justice, for the respondents

Debo P. Adegbilefor the respondents Bobby Pierson, et al.--:{

DEBO ADEGBILE – civil rights champion and former 'Sesame Street' star

www.chambers-associate.com/.../debo-adegbile-civil-rights-champion-and-former-ses...

:{:(style="border-color:#006621;;border-style:solid;border-width:5px 4px 0px !important;width:0px;height:0px;margin-left:3px;top:7.5px;margin-top:-4px;position:absolute;left:0px"):}:

1.

:{:{DEBO ADEGBILE:(style="font-weight:bold"):}: – civil rights champion and former 'Sesame Street' star .... :{Debo Adegbile:(style="font-weight:bold"):}: (:{born:(style="font-weight:bold"):}: 1966, JD NYU Law, 1994) is a civil rights lawyer and partner ...:(style="word-wrap:break-word"):}:

==

https://en.wikipedia.org/wiki/Shelby_County_v._Holder

Shelby County v. Holder, 570 U.S. _ (2013), is a landmark^[1] United States Supreme Court case regarding the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting.^[2][3]

On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old, making it no longer responsive to current needs and therefore an impermissible burden on the constitutional principles of federalism and equal sovereignty of the states.^[2][3] The Court did not strike down Section 5, but without Section 4(b), no jurisdiction will be subject to Section 5 preclearance unless Congress enacts a new coverage formula.^[4]

Contents

• :{1:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Background:(style="display:table-cell"):}:
• :{2:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{History:(style="display:table-cell"):}:
  • :{2.1:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{District Court:(style="display:table-cell"):}:
  • :{2.2:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Court of Appeals:(style="display:table-cell"):}:
  • :{2.3:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Supreme Court:(style="display:table-cell"):}:
• :{3:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Opinion of the Supreme Court:(style="display:table-cell"):}:
• :{4:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Reaction:(style="display:table-cell"):}:
• :{5:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Impact:(style="display:table-cell"):}:
  • :{5.1:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Alabama:(style="display:table-cell"):}:
  • :{5.2:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Arizona:(style="display:table-cell"):}:
  • :{5.3:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{North Carolina:(style="display:table-cell"):}:
  • :{5.4:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Ohio:(style="display:table-cell"):}:
  • :{5.5:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Texas:(style="display:table-cell"):}:
  • :{5.6:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Wisconsin:(style="display:table-cell"):}:
• :{6:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{Legislative responses:(style="display:table-cell"):}:
• :{7:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{References:(style="display:table-cell"):}:
• :{8:(style="display:table-cell;padding-left:0px;padding-right:0.5em"):}::{External links:(style="display:table-cell"):}:

Background[

Congress enacted the Voting Rights Act of 1965 to address entrenched racial discrimination in voting, "an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution."^[2] Section 5 of the Act contains a "preclearance" requirement that requires certain states and local governments to obtain a determination by the United States Attorney General or a three-judge panel of the United States District Court for the District of Columbia that changes to their voting laws or practices do not "deny or abridge the right to vote on account of race, color, or membership in a language minority group", before those changes may be enforced.^[5] Section 4(b) contains the coverage formula that determines which states and local governments are subject to preclearance under Section 5. The formula covers jurisdictions that, as of November 1964, November 1968, or November 1972, maintained a prohibited "test or device" as a condition of registering to vote or voting and had a voting-age population of which less than 50 percent either were registered to vote or actually voted in that year's presidential election.^[6]Section 4(a) allows covered jurisdictions that have made sufficient progress in ending discriminatory voting practices to "bail out" of the preclearance requirement.^[6]

The Supreme Court upheld the preclearance requirement and coverage formula as constitutional enforcement legislation under Section 2 of the Fifteenth Amendment in South Carolina v. Katzenbach (1966).^[7] The preclearance requirement initially was set to expire 5 years after enactment, but amendments to the Act in 1970, 1975, and 1982 reauthorized Section 5; the 1970 and 1975 amendments also updated the coverage formula.^[2][8]:571 The Supreme Court upheld these reauthorizations as constitutional in Georgia v. United States (1973),^[9] City of Rome v. United States (1980),^[10] and Lopez v. Monterey County (1999).^[2]:5[11] In 2006, Congress reauthorized Section 5 for an additional 25 years, but it did not change the coverage formula from the 1975 version.^[6]

Shortly after the 2006 reauthorization, a Texas utility district sought to bail out from Section 5 preclearance and, in the alternative, challenged the constitutionality of Section 5. The Supreme Court ruled 9-0 in Northwest Austin Municipal Utility District No. 1 v. Holder that government entities that did not register voters, such as the utility district, had the right to file suit to bail out of coverage. Because this decision resolved the issue, the Court invoked constitutional avoidance and declined to address the constitutionality of Section 5. Justice Thomas dissented from this portion of the opinion and would have declared Section 5 unconstitutional.^[12]

History:{:(style="margin-right:0.25em"):}:[edit:{]}:

District Court[

Shelby County, in the covered jurisdiction of Alabama, sued the U.S. Attorney General in the U.S. District Court for D.C. in Washington, D.C, seeking a declaratory judgment that sections 4(b) and 5 are facially unconstitutional and a permanent injunction against their enforcement. On September 21, 2011, Judge John D. Batesupheld the provisions, finding that the evidence before Congress in 2006 was sufficient to justify reauthorizing Section 5 and continuing Section 4(b)'s coverage formula.^[13]

Court of Appeals:{:(style="margin-right:0.25em"):}:[edit:{]}:

On May 18, 2012, the U.S. Court of Appeals for the D.C. Circuit affirmed the decision of the District Court upholding the constitutionality of Section 4(b) and Section 5. After surveying the evidence in the Congressional record associated with the 2006 reauthorization of Section 5, the appellate court accepted Congress's conclusion that Section 2 litigation remained inadequate in the covered jurisdictions to protect the rights of minority voters, that Section 5 was therefore still justified, and that the coverage formula continued to pass constitutional muster.^[14]

Supreme Court[

The Supreme Court granted certiorari to hear the case on the limited question of "whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution."^[15] The Supreme Court heard oral arguments on February 27, 2013.^[16] Media coverage of the Justices' comments during oral arguments portrayed the Court as appearing likely to hold Section 5 or Section 4(b) unconstitutional.^[17][18] Justice Antonin Scalia drew criticism from civil rights leaders, after expressing his belief during oral arguments that Congress reauthorized Section 5, not because the legislation was necessary, but because it constituted a "racial entitlement" that Congress was unlikely to end.^[17][18][19]

Opinion of the Supreme Court[

The Supreme Court struck down Section 4(b) as unconstitutional in its June 25, 2013 ruling.^[2][20] The majority opinion was delivered by Chief Justice John Robertsjoined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.^[21][22][23] The Court held that Section 4(b) exceeded Congress's power to enforce the Fourteenth and Fifteenth Amendments, reasoning that the coverage formula conflicts with the constitutional principles of federalism and "equal sovereignty of the states" because the disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day" and thus is not responsive to current needs.^[2][3] The Court expressed that Congress cannot subject a state to preclearance based simply on past discrimination. It noted that since the coverage formula was last modified in 1975, the country "has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions".^[2][24][25] The Court declared that the Fifteenth Amendment "commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future."^[26]

Roberts wrote that the Act was immensely successful "at redressing racial discrimination and integrating the voting process” and noted that the USA has made great progress thanks to the Act.^[21] But he added: “If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula.”^[21]According to the Court, "Regardless of how to look at the record no one can fairly say that it shows anything approaching the 'pervasive,' 'flagrant,' 'widespread,' and 'rampant' discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the nation."^[26][27]

The Court did not subject Section 4(b) to the "congruence and proportionality" standard of review or address whether that standard is the appropriate measure to use when determining the constitutionality of legislation passed pursuant to Section 2 of the Fifteenth Amendment.^[28] The Court also noted the federalism concerns raised by the Section 5 preclearance requirement, but it did not reach the issue of whether Section 5 remains constitutional. However, because the Section 5 preclearance requirement applies only to jurisdictions covered by the Section 4(b) coverage formula, the decision rendered Section 5 inoperable unless Congress enacts a new coverage formula.^[4][20][29]

Justice Thomas wrote a concurring opinion expressing his view that Section 5 is also unconstitutional for the same reasons the Court held Section 4(b) unconstitutional.^[2][30]

Justice Ruth Bader Ginsburg wrote a dissenting opinion that was joined by Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan. The dissent would have held that Congress had sufficient evidence before it to determine that the coverage formula remained responsive to current needs. The dissent acknowledged that discrimination in voting has decreased in the covered jurisdictions since the Voting Rights Act's enactment, but it attributed much of that decrease to the Act itself, noting that "[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet."^[2][3][26]

Reaction[

The controversial Supreme Court opinion prompted heavy media coverage of reactions from political leaders, activists, and the legal community. President Barack Obama expressed deep disappointment with the decision and called on Congress "to pass legislation to ensure every American has equal access to the polls."^[31][32]Attorney General Eric Holder also expressed disappointment with the decision, and he pledged that the Department of Justice "will not hesitate to take swift enforcement action—using every legal tool that remains available to us—against any jurisdiction that seeks to take advantage of the Supreme Court's ruling by hindering eligible citizens' full and free exercise of the franchise."^[33][34] On July 25, 2013, Holder announced that the Department of Justice will ask a federal court to subject the formerly covered state of Texas to preclearance under the "bail in" provision contained in Section 3 of the Voting Rights Act, which was unaffected by the Court's decision.^[35][36]

When asked whether a polarized Congress could agree on a new coverage formula, Speaker John Boehner acknowledged the importance of the role of the Voting Rights Act over the previous 40 years and said that he was still reviewing the decision and trying to determine the next steps. Then-House Majority Leader Eric Cantorexpressed his hope that Congress would "put politics aside" and determine how to ensure that voting rights remain protected.^[37] Representative John Lewis, a leader in the civil rights movement who was present when President Lyndon B. Johnson signed the Voting Rights Act into law, said that the decision disregarded the country's history of voting discrimination and that he fears the decision will allow local election officials "to go back to another period."^[38][39] Representative Bob Goodlatte, Chair of the House Judiciary Committee, said that the committee will review new voting data but that he is unsure whether the committee will take any specific action in response to the decision.^[40][41] On July 18, 2013, the House Judiciary Subcommittee on the Constitution and Civil Justice held a hearing to discuss how the House should respond to the ruling.^[42]

Senate Majority Leader Harry Reid said that Democrats were concerned with the ruling in light of "Republicans doing everything they could to suppress voting" in the 2012 elections, and he stated that the Senate will act to address the decision.^[43] Senator Bob Corker, however, said that he "cannot imagine" Congress ever agreeing on the terms of a new coverage formula.^[37][44] The Senate Judiciary Committee began to hold hearings on July 17, 2013 to discuss how to respond to the decision.^[41][45]

At the state level, Texas and Mississippi officials pledged within hours of the decision to enforce voter ID laws that had not been precleared by the Attorney General.^[46]Florida Secretary of State Ken Detzner said it made no sense for five Florida counties to be subjected to preclearance based on decades-old voting rights data and that the decision will save the state money.^[47] New York Governor Andrew Cuomo found the decision deeply troubling and called upon Congress to pass a new coverage formula.^[48]

Ilya Shapiro of the Cato Institute said that the Supreme Court's decision "restore[d] the constitutional order, the status quo ante the temporary Sections 4/5, because there is no longer systemic racial disenfranchisement, or at the very least in the covered jurisdictions."^[24] In contrast, Jon Greenbaum, chief counsel of the Lawyers' Committee for Civil Rights Under Law, said that because of the decision, "[m]inority voters in places with a record of discrimination are now at greater risk of being disenfranchised than they have been in decades" and that their only recourse will be to pursue expensive litigation.^[49][50] Penda Hair, co-director of national racial justice organization Advancement Project, spoke along similar lines, saying, "The Supreme Court's ruling rolls back legislation that courageous Americans fought so hard for, even giving their lives in many cases, to ensure that all citizens can participate in our democracy. Today's decision threatens the promise of equal access to the ballot – especially when the majority of voters of color who voted last year, 65.8 percent, live in states covered by the Section 4 formula."^[51]

Impact:{:(style="margin-right:0.25em"):}:[edit:{]}:

Since the ruling, several states once covered under preclearance have passed laws that removed provisions such as online voting registration, early voting, "Souls to the Polls" Sunday voting, same-day registration, and pre-registration for teens about to turn 18, which had expanded means of voter registration. The ruling has also resulted in some states implementing voter identification laws and becoming more aggressive in expunging ineligible voters from registration rolls.^[52] States that have changed their voting policies post-Shelby include both jurisdictions that were previously required to undergo federal preclearance, as well as some that were not covered, including Alabama, Arizona, Arkansas, North Carolina, Ohio, Wisconsin and Texas.

Alabama:{:(style="margin-right:0.25em"):}:[edit:{]}:

After Shelby, Alabama Republicans drew a new legislative apportionment map of the state that some contend is illegal. Democrats said that the new map packs African-American voters into too few voting districts and is an effort to hamper the power of the largely Democratic voting base.

In 2014, the Supreme Court said it would hear appeals from the Alabama Legislative Black Caucus regarding the redistricting.^[53]

Arizona:{:(style="margin-right:0.25em"):}:[edit:{]}:

In an opinion issued by Arizona's attorney general in 2013, Arizona residents who registered to vote using forms provided by the federal government must also provide documentation proving their citizenship, or their registration will be labeled invalid. Attorney General Tom Horne said those who registered using federal registration could vote in federal elections, but not state and local elections without showing proof of citizenship. The attorney general also held that these same registrants will not be able to sign petitions for candidates or ballot initiatives.^[54] Thousands may be barred from state and local voting due to this opinion.^[55]

North Carolina:{:(style="margin-right:0.25em"):}:[edit:{]}:

Shortly after the Shelby ruling, North Carolina Gov. Pat McCrory signed into law H.B. 589, which terminated valid out-of-precinct voting, same-day registration during the early voting period, and pre-registration for teenagers about to turn 18, while also enacting a voter ID law. Opponents criticized this law as adversely affecting minority voters.^[56]

The law was challenged, on behalf of the North Carolina State Conference of the NAACP, by a lawsuit filed by Advancement Project, pro bono counsel Kirkland & Ellis, and North Carolina attorneys Adam Stein and Irv Joyner. The suit alleged that the law violates Section 2 of the Voting Rights Act, as well as the 14th and 15th Amendments of the U.S. Constitution.^[57]

On July 29, 2016, a three-judge panel of the Fourth Circuit Court of Appeals reversed a trial court decision in a number of consolidated actions, finding that the new voting provisions targeted African Americans "with almost surgical precision" and that the legislators had acted with "discriminatory intent" in enacting strict election rules; the Court struck down the law's photo ID requirement and changes to early voting, preregistration, same-day registration and out-of-district voting.^[58][59] The unanimous 3 judge panel ruled that the law targeted African American voters with "almost surgical precision" to counteract increased voter participation among communities of color in the state.

Ohio:{:(style="margin-right:0.25em"):}:[edit:{]}:

In February 2014, the Ohio House approved a bill that eliminated the so-called "Golden Week" during which Ohio voters could register and vote on the same day. The bill also cut six days from Ohio's early voting period. In a separate bill, the House made it easier for registrars to reject absentee ballots for missing information. This bill ends a program that mailed absentee ballots to all registered voters. Under the new law, Ohio's secretary of state would have to get lawmaker approval to mail these absentee ballots.^[60]

Texas:{:(style="margin-right:0.25em"):}:[edit:{]}:

While its voter ID law was passed in 2011, Texas did not enact the law until 2013 after the Shelby ruling, when the state was no longer subject to federal preclearance for changes to its voting laws. Under the law, Texas voters must show a photo ID to vote. While there are some exemptions, such as for voters with disabilities, most are required to produce a Texas driver’s license or state ID card. Other forms of acceptable ID include concealed handgun licenses, military ID, U.S. citizenship papers with photo and a U.S. passport.^[61]

Critics of the law charge that it is unconstitutional. They also say that it will bar legitimate voters from voting and discourage citizens. Examples of problems under the new law involved public figures: Texas judge, Sandra Watts, was unable to vote because the name on her photo ID did not match the name on the voter rolls. Also, State Senator Wendy Davis and Attorney General Greg Abbott had trouble voting under the new law until they obtained affidavits attesting to who they were.^[62]

Wisconsin:{:(style="margin-right:0.25em"):}:[edit:{]}:

In 2014, the American Civil Liberties Union and the Advancement Project filed a petition asking the Supreme Court to block Wisconsin's voter ID law, charging the measure would disproportionately affect voters of color.^[63] Challenging the law under Section 2 of the Voting Rights Act and the U.S. Constitution, Advancement Project litigated on behalf of the League of United Latin American Citizens of Wisconsin, Cross Lutheran Church, Wisconsin League of Young Voters Education Fund, and the Milwaukee Area Labor Council of the AFL-CIO.^[64] Advancement Project claimed that Wisconsin's voter ID law, enacted in 2012, is "part of a broader attack on the right to vote."^[65] On October 9, 2014, the U.S. Supreme Court issued an emergency stay in this case, blocking a Seventh Circuit Court of Appeals order to implement Wisconsin’s voter ID law and enabling registration under previous rules for the fall of 2014 elections. It has yet to rule on the provisions of Wisconsin's law.^[64]

Legislative responses:{:(style="margin-right:0.25em"):}:[edit:{]}:

On January 16, 2014 a bipartisan group of Congress members consisting of Representatives Jim Sensenbrenner and John Conyers and Senator Patrick Leahyintroduced H.R.3899/S.R.1945,^[66] entitled the "Voting Rights Amendment Act of 2014". The bill was introduced to strengthen the Voting Rights Act of 1965 (VRA) and vital protections of it following the 2013 Supreme Court's decision in Shelby County v. Holder.^[67] The proposed Voting Rights Amendment Act of 2014 consists of five components:^[66][67]

1. Based on empirical conditions and current data there is a new coverage formula for Section 4 based on a rolling calendar, updated with a current fifteen-year time period to exempt states who are no longer discriminating or add new ones who are. The last part is designed to create a deterrent against future voting rights violations. Under the new formula states with five violations of federal law to their voting changes over the past fifteen years will have to submit future election changes for federal approval. Local jurisdictions would be covered if they commit three or more violations or have one violation and "persistent, extremely low minority turnout" over the past fifteen years. While Voter ID laws can still be blocked by the Department of Justice in the new states covered under Section 4, objections to voter ID laws by the department will not count as a new violation.
2. Section 3 of the bill makes it possible that a court may order jurisdictions not covered by Section 4 to have future changes to its election laws preapproved by the federal government after plaintiffs file a corresponding application with the court. Plaintiffs have to show evidence of intentional voting discrimination to enable such a bail-in. Any violation of the VRA or of federal voting rights law—whether intentional or not—can be under the new section 3 proposal grounds for a bail-in, but court objections to voter ID laws that are not found to be intentionally discriminatory cannot be used as grounds for "bail-in" under Section 3.
3. Jurisdictions in all U.S. states have to provide notice in the local media and online of any election procedures related to redistricting, changes within 180 days of a federal election and the moving of a polling place. Citizens can thus easier identify potentially harmful voting changes in states not subject to Sections 4 and 5 of the VRA.
4. Plaintiffs seeking a preliminary injunction against a potentially discriminatory voting law must only show that the hardship to them outweighs the hardship to the state if a law is blocked in court pending a full trial.
5. Affirming the attorney general's authority to send federal observers in states subject to Section 4 to monitor elections in these states the proposal expands the attorney general's authority to send observers to jurisdictions with a history of discriminating against language minority groups.

As of June 2014 the proposed Voting Rights Amendment Act of 2014 was in limbo because there is no widespread support to amend the Voting Rights Act as it was by its re-authorization in 2006 by Congress.^[68] Both the House and Senate versions of the bill ultimately died in their respective Judiciary Committees.^[69][70] The House introduced the Voting Rights Amendment Act of 2015 the following year.^[71] It was referred to the House Judiciary Committee on the day it was introduced, and is not expected to move past the committee stage.^[72]

New York Senator Kirsten Gillibrand proposed to make online voter registration universal. Under her proposal states with existing online access would expand their system beyond those with state-issued IDs to allow more young people, seniors, minorities and the poor access and update their own voter records online. To ensure security, online systems will verify voter's eligibility by checking each person's personal information, like date of birth, Social Security, and address.^[73] According to the Brennan Center for Justice at New York University Law School in 2014 several states (California, Colorado, Hawaii, Illinois, Louisiana, Massachusetts, Minnesota, Mississippi, Nebraska, Oklahoma, South Carolina, Utah) and Washington, D.C. passed laws improving voter access, while laws restricting voter access was only passed by a minority of states in 2014. Introduced and pending legislation to expand and improve access to registration and voting include as of December 2014 electronic transfer of voter registration information, online registration, portability i.e. the possibility to move a voter's registration with her when she moves to a new address within the same county or state, fail-safe protections, easier registration and voting for students, people with disabilities, military members and for voters who speak a language other than English as well as expansion of opportunities for voting registration and for early in-person voting.^[74]

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15. :{Jump up:(style="user-select:none;top:-99999px;clip:rect(1px 1px 1px 1px);overflow:hidden;position:absolute !important;padding:0px !important;border:0px !important;height:1px !important;width:1px !important"):}:^ Certiorari granted, November 9, 2012
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External links:{:(style="margin-right:0.25em"):}:[edit:{]}:

• Oyez: Shelby County v. Holder

Categories: 

• United States elections case law
• United States Supreme Court cases
• United States Supreme Court cases of the Roberts Court
• 2013 in United States case law
• Shelby County, Alabama
• Legal history of Alabama

http://www.slate.com/articles/news_and_politics/jurisprudence**/2016/**08/why_the_supreme_court_won_t_likely_revisit_shelby_county.html

Friday was a great day for voting rights. In fact, it was probably the best day voting rights advocates have had since 2013, when the Supreme Court gutted the Voting Rights Act. First, a federal appeals court struck down North Carolina’s voting law—seen by many as the most regressive in the nation—finding that Republican lawmakers intentionally discriminated against black voters in drafting the bill. Hours later, a federal court told Kansas it couldn’t stop people from voting in state and local elections this fall simply because they failed to show proof of citizenship when they registered. Not long after, a federal judge ruled unconstitutional a range of strict voting rules imposed in Wisconsin.

Along with other recent decisions against voter ID laws in Texas and Wisconsin, Friday’s rulings suggest a new assertiveness by the courts in fighting off the most egregious state-level barriers to the polls. Even the high court—though unlikely to overturn its disastrous 2013 ruling in Shelby County v. Holder any time soon, even with a fifth liberal member potentially on the court after the election—is poised to join the wave by issuing a ruling significantly strengthening voting rights before too long.

Of course, this isn’t the first time we’ve seen voting restrictions blocked by courts. And, thanks to Shelby, plenty of other new constraints—in states like Virginia, South Carolina, Alabama, and Georgia—will be in place in November. Still, the string of opinions over the past two-plus weeks has the feel of a potentially decisive shift in how courts treat these laws. In bracingly clear language, the recent rulings collectively reinforce the picture of these restrictions that their fiercest critics have long painted: That they purport to solve a problem—fraud and illegal voting—that doesn’t actually exist; that even if fraud were a problem, these laws would do little to stop it; that instead they keep large numbers of legitimate would-be voters from the polls; and that they affect blacks and Latinos more than whites, in many cases by design.

The North Carolina ruling found that the law’s provisions “target African-Americans with almost surgical precision.” Lawmakers, the court recounted, asked for a racial breakdown of certain methods of voting—absentee voting, early voting, out-of-precinct voting, and same-day voter registration, in which voters can register and vote all in one—then eliminated or cut all those that blacks used more than whites. (On Friday, warning outlandishly that the North Carolina ruling could let Hillary Clinton “steal the election” through fraud, state Republicans said they’d appeal to the Supreme Court. But their chances of getting five votes on the eight-member court are slim.)

The string of opinions over the past two-plus weeks has the feel of a potentially decisive shift in how courts treat these laws.

Another opinion last month from the 5th U.S. Circuit Court of Appeals—the most conservative appeals court in the country—finding Texas’s voter ID law to be racially discriminatory was similarly scathing. It noted that the state saw only two convictions for in-person voter impersonation out of around 20 million votes cast in the decade leading up to the bill’s 2011 passage. And yet the measure did nothing to stop mail-in ballot fraud, which is far more common. The law’s provisions, concluded Judge Catharina Haynes, a George W. Bush appointee, “fail to correspond in any meaningful way to the legitimate interests the State claims to have been advancing.”

Basically, we’ve come a long way from 2008, when the Supreme Court took it on faith that Indiana’s voter ID law was intended to stop fraud, without even requiring the state to show that fraud was a problem. Even two years ago, when a federal appeals court upheld Wisconsin’s ID law, it reasoned blithely—and against much of the evidence presented—that getting an ID should be easy for anyone “willing to scrounge up a birth certificate and stand in line at the office that issues drivers’ licenses.”

So: Why the shift in how the courts view these laws? Some high-profile changes of heart may have helped. Retired Justice John Paul Stevens, who was part of the Supreme Courtmajority that upheld the Indiana lawin Crawford, recently called it “a fairly unfortunate decision,” adding that the justices didn’t have access to enough information on the law’s impact.Judge Richard Posner, a conservative who wrote the appeals court decision that approved the same law, has gone further. He made clear in 2013 that he got Crawford wrong, writing that voter ID laws are “now widely regarded as a means of voter suppression rather than of fraud prevention.”

More important is that we simply have more information than we did even a few years ago about the effects of voting restrictions. And nearly all of what we’ve learned supports the claims made by the laws’ opponents. Friday’s ruling against the North Carolina law cited data from the 2014 election in concluding that “thousands of African-Americans were disenfranchised” by the elimination of the same-day registration period.

Some liberals are even starting to hope that a future Supreme Court—with a ninth member appointed by President Hillary Clinton—could overturn Shelby. It’s not impossible, but the idea isn’t on voting rights advocates’ immediate radar. Shelby invalidated the plank of the Voting Rights Act, known as Section 5, that had required areas with a history of racial discrimination in voting to get their election changes pre-approved by the federal government. With Section 5 no longer in effect, most experts think it would be difficult to fashion a case challenging Shelby, and that even if you could, restoring Section 5 by judicial fiat might be too aggressive for some of the court’s liberals.

More likely, for now, is that the court takes a different approach. Since Shelby, another plank of the Voting Rights Act, Section 2, has become even more crucial. Conservatives have long sought to limit Section 2’s scope, by arguing that it applies only to explicit and intentional racial discrimination, not actions that have a discriminatory effect. That’s a claim Texas made in defending its voter ID law. (So too did John Roberts, as a young lawyer in the Reagan Justice Department back in 1981, in a memo to his boss.) And it’s one that, as the appeals court in that case noted, would make Section 2 all but useless, since few people writing laws these days announce their intention to racially discriminate. A Supreme Court opinion resoundingly affirming the idea that Section 2’s ban on racial bias in voting should be read broadly would strengthen the Voting Rights Act and make it much easier for lower courts to continue blocking laws that obstruct the right to vote. And unlike restoring Section 5, it would have an impact nationwide.

Indeed, such an opinion might get five votes even without a ninth justice. Last year, the court rejected a conservative challenge to the Fair Housing Act that similarly sought to narrow that law so that it would apply only to intentional racial discrimination. Justice Anthony Kennedy wrote the majority opinion backing the idea that the law bars more than just explicit racism—which suggests he might be open to doing so again when it comes to voting. Should the justices take a major voting rights case in the near future, the result could be a clear statement that targeting voters on account of their race is illegal, even with Shelby County still standing.

==

Shelby v. Holder

Dennis Bernstein: Welcome back to our weekly Election Protection Bulletin with best-selling author Greg Palast. Let's start in Topeka, Kansas with its Secretary of State Kris Kobach. He's definitely going head to head with the ACLU there.

Greg Palast: Kris Kobach is spelled like Koch with a BA in the middle. He's the most influential Republican secretary of state in America - the Katherine Harris of 2016.

He's one of the very first governmental Republican supporters of Donald Trump. Anne Coulter has

said Trump should pick him as his running mate. This guy is an important cat.

What's he up to? He's “saving” America from an invasion of aliens - not from outer space, but from other nations, wading the Rio Grande to vote in American elections. He claims there is a mass incursion of illegal aliens coming to the US to vote for Hillary.

The federal government, despite a massive and costly hunt, has found almost no non-citizen has voted. (Florida’s campaign to stop alien voters netted a single conviction—an Austrian who registered Republican, while threatening the votes of 181,000.) Yet, Kobach’s envisioning the alien ships are there. To prevent this crime that doesn't happen, he's required anyone registering to vote in Kansas to prove their citizenship.

This is not as easy as it sounds. A driver’s license doesn't count. A social security card doesn't count. Only naturalization papers, a passport, or an original birth certificate count. As a result, the state of Kansas has suspended the registration of 36,000 young people. [This doesn’t affect Kobach’s voters who have an average age of 115.]

This is very effective at keeping out voters of color and young people. Not many poor Americans or people of color have passports. They have not just returned from their vacation in the Alps with their

passport in hand. Many people, including those who were born at home, cannot find their original birth certificate. This is crushing the voter rolls of the state of Kansas. Now it’s in Georgia as well.

DB: This has become a model for many states.

GP: Kris Koback wrote SB 1070 for the state of Arizona, which was mostly thrown out by the courts as racist and unconstitutional. This guy is no foolish redneck bigot. He's a graduate of Harvard, Yale and Oxford.

A few years ago, Indiana was the first state to require a photo voter ID to vote. There was only that one state in 2006, and now 23 states require it. If Kobach gets away with requiring citizenship proof in Alabama, Kansas and Georgia, you can bet that coming soon will be North Carolina, Arizona, Florida and many others. They know what they are doing.

And dig this: It’s quite unusual that Kobach, as Secretary of State of Kansas, is still counsel, a lawyer, for a group IRLI, the Immigration Reform Law Institute, which is the legal arm of two allied groups called Numbers USA and FAIR. FAIR is the Federation for American Immigration Reform, which the Southern Poverty Law Center has called a hate group. It was founded by John Tanton, who says

the purpose of the group is to maintain a "European American majority."

Kobach - while a lawyer for the hate group and Secretary of State of Kansas at the same time - has also been the lawyer for Arizona Sheriff Joe Arpaio. (Arpaio was officially charged with racism by the US Justice Department.)

As Secretary of State of Kansas, Kobach is in charge of voting in Kansas— and the most influential Republican voting official in the US.

Kobach has mounted a frontal assault on the federal voter protection, starting with the Motor Voter law.

Under Bill Clinton, the US made a huge leap in the voter franchise - the biggest since the Voting Rights Act of 1965 - by enacting the Motor Voter Law. Now, when you get a driver's license, you fill out the attached form and you become a voter. Adding voter registration forms to the driver’s license

application has massively increased the reach of voter registration in America.

The Republicans, especially Kobach, really hate it. They say the federal motor voter form does not require that you prove your citizenship. You need to be a citizen, sign a box saying you are a citizen and sign it.

So Kobach said that if you register on the federal form, YOU CAN’T VOTE IN STATE ELECTIONS unless you register separately with your proof of citizenship.

The result: There are 36,000 young people in Kansas , especially young voters of color, whose state voting rights have been suspended. So Kansas literally has an official apartheid voting system.

DB: The ACLU filed a motion for summary judgment seeking to declare this as an illegal system based on dual registration. Where is this case going?

GP: There’s a terrible new twist.

Kobach asked the federal government to make a special voter form for his state, and other white Republican-controlled states of Alabama and Georgia. The federal government and courts turned him down.

But then, one of his acolytes became the chief of the federal Elections Assistance Commission. Kobach’s man Brian Newby is now the Executive Director of the agency that’s supposed to protect our vote!

Newby’s first act in office was to allow Kansas, Georgia and Alabama to have their own special voter

registration form—allowing those states to require proof of citizenship to vote. This may moot the ACLU's complaint because the federal form now includes this special extra hurdle for voters in those state to prove citizenship.

This is a devastatingly effective means to suppress the registration of new, young, minorities and low-income voters. So, the ACLU has sued the US agency as well. Weirdly (and thankfully), the US Justice Dept. is backing the ACLU against the federal government.

Then the League of Women Voters joined the ACLU to sue the federal agency. Kobach's response was to call the League of Women Voters the "Communist League of Women Voters." Reporters couldn't believe their ears, so he repeated, "The Communist League of Women Voters."

Is there really a danger non-citizens will flood the polling stations? The reason folks who are not citizens never vote is that the Motor Voter Form asks you to state if you’re a citizen — and makes it

perfectly clear that if you lie, you can go to prison for five years. People aren't going to risk going to prison for five years just to vote for school board, or even for president. There’s been no problem with this. Why would an alien without documents sign a form with their address? To make it easier for ICE to snap them up? It’s nuts. But Kobach won’t accept this. He demands a passport or original birth certificate or you don't get to register.

Consider the implications of this new voter form for November.

Georgia will be a swing state in 2016 and Alabama has a crucial Senate race this year. Blocking voters who can't easily prove they are citizens has killed registrations among young voters in these states.

Guess which way young people vote?

As an investigative reporter I follow the money. Who is behind this latest suppression tactic, the attack on voters as potential aliens?. Who is paying for Kobach?

A group called Numbers USA gave $100,000 to a little town called Farmers Branch, Texas. The town gave that $100,000 to Kobach to defend a racist law that was immediately thrown out by the courts. Numbers USA is funded by something called Donors’ Trust—which, in turn, is the funnel for the funds from the Charles and David Koch. So, where does Kris Kobach get his pin money? He gets it from the brothers Koch, through a chain of front organizations.

DB: The Koch brothers say publicly they are stepping out of this election because they don't support Trump, so don't want any part of this. We assume they are not controlling the structure of the

election. But they are only talking about one candidate. Their hands are all over everything - who has the control, the power, and who has the right to vote in the future of this country, which is now a whiteminority.

GP:Let's not fall for the jive. It's not whether they support Trump or not. The Koch brothers are putting $900 million - just short of a billion dollars - into this election. If it's not for the presidency, what is it for? It's very clear: If the Republicans lose just four senate seats - and they've got 24 seats up for grabs - the control of the Senate flips to the Democrats.

I don't take sides between Republicans and Democrats. I take sides on allowing people to vote. You see a massive push by the Koch Brothers promoting these various voter suppression tactics and organizations pushing for voter suppression.

They provided the money for the attack on the Voting Rights Act. The structure of the Voting Rights Act was based on the case of Shelby v. Holder. Shelby County, Alabama, doesn't have a pot to pee in so they can't afford fancy lawyers to argue before the Supreme Court. The money, the cost of the entire case, was paid for by an organization funded by the Koch brothers. Let's not get fooled by whether they love Trump.

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