Justin Levitt

  • August 7, 2014

    by Caroline Cox

    David Firestone writes in The New York Times about the myth of large-scale voter fraud. New research from Justin Levitt, Co-Faculty Advisor for the Loyola Law School, Los Angeles ACS Student Chapter, shows that voter impersonation almost never happens and raises serious questions about motivation behind voter ID laws. In June 2012, Levitt wrote an ACS issue brief entitled “The New Wave of Election Regulation.”

    Charles Lane of The Washington Post compares the immigration reform President Obama is contemplating to the Emancipation Proclamation. Not since 1862 “has a president considered ordering a more sweeping adjustment to membership in the American community.”

    New data from the Pew Research Center shows shifting opinions of the Supreme Court among Americans, including a growing number of individuals who view the court as conservative. 

    Dennis Henigan writes in Politico about the “Jim Brady effect” and the current state of the gun-control movement.

    The National Commission on Voting Rights released a new report showing continued voter discrimination against African Americans, Latinos, and Native Americans throughout the United States.

  • September 13, 2013
    Guest Post

    This post originally appeared on SCOTUSblog as part of its online symposium on McCutcheon v. Federal Election Commission.

    by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process.

    Photographs purport to show objective facts.  But whether they illuminate or distort our understanding of the world depends entirely on choices — of lens, of frame — that the photographer has made.

    Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court’s understanding of our rights and obligations.  Without recognizing this truth, it is virtually impossible to understand the Court’s campaign finance jurisprudence.

    McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief.

  • February 26, 2013

    by Jeremy Leaming

    Professor Justin Levitt says Section 5 of the Voting Rights Act provides elasticity – that is covered jurisdictions complaining about federal intrusions have a way to “bail-out,” by showing that their proposed changes to voting laws would not discriminate against minority voters. And Prof. Gabriel J. Chin says the Supreme Court, when it considers the constitutionality of Section 5 in Shelby County v. Holder, should refrain from overreaching, allowing Congress to do its job, which in part entails enforcing the Fifteenth Amendment of the Constitution.

    See their posts and others in the ACSblog symposium on the Shelby County case, which the justices will hear oral argument in tomorrow.

    Janai S. Nelson, a professor of law at St. John’s University School of Law, in a post for Reuters also provides some excellent insight into the viability of Section 5. (Section 5 requires certain states and towns, mostly in the South, with long histories of racial discrimination in voting to obtain “preclearance” for proposed changes to their elections laws and procedures from the Department of Justice or a federal court in Washington.)

    She notes that a major aim of Section 5 centers on ensuring that “new voting laws will not ‘retrogress’ – or harm – minority voting rights.”

    And as many have noted, during the 2012 elections the Department of Justice successfully employed Section 5 to prevent discriminatory elections laws from going into effect in several covered jurisdictions, such as Texas, Florida and South Carolina. (See the ACS Voting Rights Resources page for more information on this case and the landmark law.)

    Section 5, Nelson continues, has “changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial harm. Indeed, Section 5’s anti-regression standard directs jurisdictions subject to oversight either to advance or, at a minimum, protect minority voting rights.”

    As noted here, Alabama officials are arguing against Section 5 partly by saying that racial discrimination is no greater in Alabama than in other states and therefore it should be dumped or greatly reworked to not burden Alabama or the other covered jurisdictions. The NAACP LDF, which is representing Alabama voters in Shelby County, says Alabama officials are turning a blind eye to the persistent efforts to harm minority voters in the state – like rewriting voting districts to dilute the minority vote, while giving more power to white voters.

    Nelson also adds that progress made in the covered jurisdictions should not lead one to conclude that Section 5 has done its job and is now an unconstitutional tool the federal government is unnecessarily wielding.

    The fact, she writes, “that the record of discrimination in covered jurisdictions has diminished is evidence that Section 5 is working – not that it has exhausted its usefulness.”

    Nelson, and other staunch supporters of the Voting Rights Act, is nailing it – Section 5 is working and the Supreme Court’s right-wing bloc, if it could keep its ideological leanings in check, would not block Congress’s constitutional authority to ensure the promise of both Fourteenth and Fifteenth Amendments.

  • February 26, 2013
    Guest Post

    by Justin Levitt. Professor Levitt, on loan from Loyola Law School, Los Angeles, is a visiting associate professor of law at Yale Law School. He focuses on constitutional law and the law of the political process. This post is part of an ACSblog symposium on Shelby County v. Holder.

    On Wednesday, the Supreme Court will hear Shelby County v. Holder, a challenge to part of the Voting Rights Act.  The case touches on enormously important, vigorously contested, issues: federalism, race, voting rights, political power, Congressional authority.  Amidst all of this big stuff, the Court must make sure it keeps its eye on the heart of the case.

    The fight is about a particular part of the Voting Rights Act, with special rules for much of the South (and a few other jurisdictions).  It requires these states (and counties, and towns) to run any election-related changes by the Department of Justice or a federal court, to make sure that the changes won’t leave minorities politically worse off. 

    The process of DOJ or court review is called “preclearance” – and in 1966, and again in 1980, the Supreme Court firmly validated the concept for the parts of the country with the most troubled voting rights history.  Preclearance is special medicine, which the Court has already approved for the sickest patients.

    In 2006, Congress essentially renewed the prescription as is. And the plaintiffs now challenging the law say that the patient list is out of date. It’s a 1965 take, they say, on a 21st century world: the list is no longer sufficiently tailored to where the problems are.

    So who is on the list, needing federal approval for new election rules? It starts with a formula: areas where less than half of the eligible population registered or voted in the presidential elections of the 60s. These are the parts of the country where democracy was broken. We talk about majority rule: in these areas, a majority wasn’t even able to participate.

    Shelby County, Alabama, was on the list in the 60s. And it’s still on the list now. But that doesn’t mean the list is static.  Quite the contrary: change was built into coverage from the get-go. 

  • January 11, 2013

    by Jeremy Leaming

    Hardly surprising, but another Alabama official is urging the U.S. Supreme Court to invalidate an integral provision of the Voting Rights Act. Efforts to suppress the votes of minorities no longer exist, Alabama Attorney General Luther Strange argues in a brief lodged with the U.S. Supreme Court, which will hear oral argument on Feb. 27 in a case challenging provisions of the landmark civil rights law, including its primary enforcement provision, Section 5.

    The attorney general concedes in his brief that the state still “grapples with race relations issues, but they are the same kind of issues every state currently is endeavoring to solve,” reports Mary Orndorff Troyan for the Montgomery Advertiser.

    Strange’s brief is filed in support of a lawsuit brought by Shelby County, Ala., “a conservative, mostly white county south of Birmingham,” as Troyan describes it. In Shelby County v. Holder, the officials argue that Section 5 of the Voting Rights Act is unconstitutional because it covers some but not all states. Section 5 requires all or parts of 16 states to obtain “preclearance” of proposed changes to voting procedures from the Department of Justice or a federal court in Washington, D.C. Section 5 of the law was intended to ensure that states and localities and with long histories of suppressing the vote of minorities do not create discriminatory voting procedures.

    The NAACP LDF, which has intervened in the case to represent voters, argues that Section 5 remains central to the Voting Rights Act because it works to block discrimination before it occurs. LDF and other civil rights organizations have noted that the Supreme Court has ruled on numerous occasions that Section 5 is constitutional and that in 2006 Congress overwhelmingly reauthorized the Voting Rights Act. Congress, in reauthorizing the law, created a record “consisting of 15,000 pages of evidence” supporting the ongoing need for a strong enforcement provision.