Tuesday round-up

By Amy Howe
on Aug 20, 2013 at 9:03 am

The Court’s recent decision in Shelby County v. Holder, striking down the provision of the Voting Rights Act which identifies the jurisdictions that must obtain preapproval (under Section 5 of the Act) for any changes to their voting laws and procedures, continues to provide fodder for commentary and analysis.  At Slate, Rick Hasen cites a new North Carolina voting law as evidence that the Act and its preapproval requirement are still necessary; he contends that the fact that “the conservative justices have already been proven wrong a few scant weeks after the decision came down offers little solace for the voters of North Carolina, who ironically will have to try to fix the problem using the very mechanism of voting—which the North Carolina legislature is inhibiting.”  But at the Election Law Blog, Rick Pildes and Dan Tokaji examine data on how Section 5 actually operated in practice before the Court’s decision in Shelby County and conclude, based on that data, that “Section 5′s bark was bigger than its perceived bite when it came to protecting access to the vote.”  They suggest that “other tools are likely to be more effective at protecting access to the ballot box.”  

Briefly:

• In the California Lawyer, Erwin Chemerinsky reviews The Great Dissent, a new book by Thomas Healy that focuses on the apparent change of heart by Justice Oliver Wendell Holmes on the First Amendment.  Chemerinsky describes the book as a “rich and compelling portrait of Holmes and the world in which the [First Amendment] cases arose,” as well as “a wonderful explanation of how justices think and arrive at their positions.”
• Justice Scalia spoke yesterday at a gathering of the Federalist Society in Montana, where he suggested that – among other things – the Court was making decisions that should instead be made by Congress or the executive branch.  Matt Volz of the Associated Press (via the Minneapolis Star Tribune) reports.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel on an amicus brief in support of the respondents in Shelby County.  However, the author of this post is no longer affiliated with the firm.]