Spencer Overton

  • February 22, 2013
    Guest Post

    by Spencer Overton, Professor of Law at The George Washington University Law School and author of the book Stealing Democracy: The New Politics of Voter Suppression. This post is part of an ACSblog symposium on Shelby County v. Holder.

    Many who assert the U.S. Supreme Court in Shelby County v. Holder should uphold the preclearance and coverage provisions of Section 5 of the Voting Rights Act disagree with the Court’s 2008 decision in Crawford v. Marion County Bd. of Elections that upheld Indiana’s photo identification requirement.  On the other hand, those who oppose Section 5 cite Crawford as a reason Section 5 is allegedly unconstitutional. 

    An honest reading of Crawford, however, provides five reasons the Court should now defer to Congress’s determinations regarding the coverage and preclearance provisions of Section 5. 

    1.  Legal Issue:  In Crawford, the U.S. Supreme Court ruled that the Indiana ID requirement did not unconstitutionally burden the right to vote (the Court did not address whether ID discriminated on the basis of race).  The plaintiff in Shelby County seeks to undermine Congress’s authority under the 14th and 15th Amendments by making the novel claim that the coverage provision violates a “principle of state equality” -- but the U.S. Constitution contains no such requirement

    2.  Record:  In Crawford, the U.S. Supreme Court deferred to Indiana’s interest in preventing fraud despite the fact “[t]he record contain[ed] no evidence of any such fraud actually occurring in Indiana at any time in its history.”  In Shelby County v. Holder, the Court should defer to a 2006 Congressional reauthorization process that featured 21 hearings, over 90 witnesses, and a 15,000-page record that showed that contemporary voting discrimination remains concentrated in covered states.  For example, Congress found that the Justice Department lodged over 700 objections to voting changes enacted by covered jurisdictions since Congress previously reauthorized Section 5 in 1982.  Congress also considered the “Katz Study,” which showed that covered jurisdictions account for less than 25 percent of the nation’s population but 56 percent of the successful published Section 2 voting rights cases.  The percentage of documented elections with extreme white bloc voting was 80.7 percent in covered jurisdictions, compared to 40.9 percent in uncovered jurisdictions. 

  • September 1, 2009

    The Justice Department announced this week that Georgia State University College of Law professor Neil Kinkopf is joining the Justice Department's Office of Legal Policy (OLP) as OLP's counselor to the assistant attorney general. Kinkopf, the faculty advisor to the ACS chapter at Georgia State, has been a regular ACS participant.

    At the Justice Department, Kinkopf joins David Barron, former member of the board of advisors at the Harvard Law and Policy Review (the official journal of ACS,) and Martin Lederman, a regular ACS participant. Barron remains the de facto head of the Office of Legal Counsel (OLC) pending Senate confirmation of former ACS board member Dawn Johnsen to lead the office.

    Also at the Justice Department, are former ACS board member Spencer Overton and Chris Schroeder, co-author of ACS's Keeping Faith with the Constitution -- both of whom are at the OLP. And, of course, former ACS board member Eric Holder is serving as Attorney General.

  • May 6, 2009
    Harvard Law Professor Elizabeth Warren, the head of the oversight panel responsible for the TARP bailout fund, and Gregory Craig (below), the White House Counsel, are two of the speakers already booked for the 2009 ACS National Convention, June 18-20.

    Professor Warren will be the featured speaker at a luncheon on Saturday, June 20. Craig will be part of a plenary panel to discuss "The Levers of Change: How Progress is Made in Today's Policy Environment" on Friday afternoon. Joining Craig will be Preeta Bansal, General Counsel for OMB; Lisa Brown, White House Staff Secretary; Ron Klain, Chief of Staff, Vice President Joe Biden; Spencer A. Overton, Principal Deputy Assistant Attorney General Office of Legal Policy; and John Podesta, President and Chief Executive Officer of the Center for American Progress.*

    This is one of three star-studded plenary panels that will take place during the convention. "Improving the Courts: The Perspective from the Bench," will be moderated by former New York Times Supreme Court reporter Linda Greenhouse and includes a number of prominent federal judges. A third panel, which opens the Convention, is entitled "Keeping Faith with the Constitution, and is the theme of the convention and also the title of a book just released by ACS and written by Professors Goodwin Liu, Pamela Karlan and Christopher Schroeder. In addition to the authors, the panel will include Judges Rosemary Barkett and Jeffrey S. Sutton and will be moderated by Thomas Goldstein.