October 2009 - Posts

RNLA Co-Chair Cleta Mitchell Appears on Fox and Friends
Sat, Oct 31 2009 1:28 PM

RNLA Co-Chair Cleta Mitchell appeared on Fox and Friends this morning to discuss the status of Congressional funding to ACORN. Please click here to watch the video of Cleta's appearance.

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Big Money Friday – Spam King to Pay $711 Million
Fri, Oct 30 2009 12:56 PM

I get a lot of spam. Luckily my email program filters it for me. It seems everyday there's some new internet impresario out there looking to fill our inboxes with useless and often malicious messages. Today one of these spammers has been put in his place. In a California District Court Sanford "Spamford" Wallace was ordered to pay $711 million in damages to Facebook. He was prosecuted under the CAN-SPAM Act of 2003.

Facebook Dethrones Spam King

Facebook wins a $711 million lawsuit against chronic spammer Sanford Wallace.

Today, a California court awarded Facebook $711 million in civil damages against Sanford Wallace, the notorious sell proclaimed "spam king" who is also known by the derisive nickname "Spamford." The court found Wallace guilty of violating the CAN-SPAM act, and he could face time in prison if convicted.

Wallace allegedly accessed Facebook accounts without obtaining permission, and used them to make bogus wall posts and spam the account holders' friends. Those actions run afoul of the CAN-SPAM Act of 2003, which sets guidelines for commercial e-mails, which are enforced by the Federal Trade Commission (FTC).

See the full article here.

by Chris Berg | with no comments
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50 More Days Without Federal Funds
Fri, Oct 30 2009 12:45 PM

Here's my latest post on www.biggovernment.com discussing the Continuing Resolution, ACORN funding, and the need for a complete investigation:

ACORN – 50 More Days Without Federal Funds

By Chris Berg

On Thursday, the United States House of Representatives passed a continuing resolution funding the Federal Government through December 18th.  The continuing resolution was passed as part of the behemoth Interior-Environment Appropriations conference report.

A continuing resolution is a stop-gap provision which allows the government to continue its operations until Congress can determine the next year's appropriations.  The actions taken today merely extended the expiration date of the resolution which went into effect on October 1st.

By extending the existing continuing resolution Congress has continued to deprive ACORN and its affiliates of federal funds until December 18th.

This is not a substitute for more definitive action.  The Congress must act to pass Republican Leader Boehner's Defund ACORN Act as stand-alone legislation.  Boehner's comprehensive legislation prevents the awarding of federal contracts, grants, cooperative agreements or any other form of agreement to this criminal organization.

See the full article here.

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“ACORN is Not a Good Organization”
Fri, Oct 30 2009 9:16 AM

The Pittsburgh City Paper interviewed local ACORN activist Maryellen Hayden. Hayden founded the local chapter of the group and is one steadfast defender of the organization. Hayden, like most ACORN supporters, stayed on message, using her ACORN talking points to defend the organization. The paper brought some balance to the story by speaking with RNLA First Vice President Heather Heidelbaugh:

"I've come to the conclusion that ACORN is not a good organization," says Heather Heidelbaugh, a Pittsburgh attorney and vice president of the Republican National Lawyers Association. "They've tried to convince the culture that their motives are pure, but I'm not convinced of that." 

Heidelbaugh, a lawyer for an ACORN whistleblower from Washington, D.C., testified before Congress earlier this year, accusing the group of running a "muscle-for-money" program where ACORN would charge unions and other groups to organize protests against companies. ACORN officials have denied the accusations.

"It's a smear campaign!" charges Hayden. "They're coming after ACORN because ACORN is successful." 

See the full article here.

by Chris Berg | with no comments
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Did YOU Request an Absentee Ballot? New Jersey Democrats May Have Done So For YOU!
Fri, Oct 30 2009 8:53 AM

The National Review is reporting that New Jersey Democrats have been aggressively turning in absentee ballot applications. The problem is, they don't appear to have been signed by the voters. Who's signing these ballots? Are the Democrats trying to create a bank of ballots they can fight for should the Governor's race go to a recount?

Democrats Ask New Jersey Secretary of State to Ignore Mismatched Signatures on Absentee-Ballot Requests

This year, New Jersey's registered voters can request a mail-in ballot for any reason. (Before 2005, voters needed to provide a reason for why they needed an absentee ballot.) The state received about 150,000 absentee-ballot applications this year.

On about 2,300 of those applications so far, the signature on the request form does not match the signature on the voter's registration forms with the state.

In a development that is depressingly predictable, the New Jersey Democratic party is asking the state to provide provisional ballots for all these voters. Those ballots could, presumably, be used to overcome any narrow lead by Republican Chris Christie over Democrat Jon Corzine on Election Day.

A mass distribution of provisional ballots, at the request of a political party, would represent a significant change from established law. Currently, when a county clerk rejects an absentee-ballot request, the clerk tries to contact the voter — through mail, by phone, and in some cases, by attempting to contact the voter in person. And a person who has spoken to some of New Jersey's county clerks says they're granting wide latitude on signature styles; for them to reject a ballot request because of the signature, it has to be dramatically different from the one on file.

See the full article here.

by Chris Berg | with no comments
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Norcross: They are in Permanent Campaign Mode
Fri, Oct 30 2009 7:06 AM

On Wednesday, Chris wrote about how Obama sells access to the White House for his campaign's top donors and fundraisers. Peter Roff, writing for U.S. News and World Report wrote a piece about it quoting RNLA Chair David Norcross. The White House denied any notion of impropriety:

Presidential aides, unsurprisingly, deny the existence of a plan that uses the White House and specialized access to it as a fundraising tool. "Contributing does not guarantee a ticket to the White House, nor does it prohibit the contributor from visiting," deputy White House communications director Dan Pfeiffer said, an assertion that critics of the fundraising activities revealed in the story find laughable.

Roff then quotes Norcross:

"Who believes anything that comes out of the White House or the president anymore," said Republican National Lawyers Association Chairman David Norcross said. "They are in permanent campaign mode and that for them has always meant saying whatever it takes to capitalize on the moment."

Norcross, an expert on campaign finance law and a former general counsel to the Republican National Committee, says the Times' revelations reveal hypocrisy of the highest order. "No lobbyists, no special interest influence, no campaign contributor shenanigans, was the pitch during the campaign. Now it is worse than business as usual; unelected, unconfirmed czars over heaven knows what, compensation control, bailouts for newspapers, attacks on media which has the temerity to disagree," he says, adding, "I am surprised at nothing."

by Justin Riemer | with no comments
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Two Worlds Collided – The Hogan & Hartson and Lovells Merger
Thu, Oct 29 2009 3:18 PM

There has been a flurry of merger activity lately. We've seen companies from across the pond joining with American corporations - soft drink manufacturers, chocolate and candy distributors, and even law firms. The Wall Street Journal has an interesting article about the possible merger of Hogan & Hartson with Lovells. The WSJ notes that there may be some cultural issues to resolve, specifically in how the firms compensate their partners.

Hogan & Hartson LLP, a powerful Washington law firm that was previously home to Supreme Court Chief Justice John Roberts, is on course to merge with Lovells LLP, one of Britain's largest and most prominent firms, according to people familiar with the matter.

If approved, the deal would create one of the world's largest law firms, with about 2,500 attorneys and $2 billion in annual revenue. It also would mark a rare combination of top-tier U.S. and British firms.

Though the merger talks could still fall apart, management committees for both firms will recommend the proposed deal to their respective partnerships, said people familiar with the matter. Both firms would need their partners' approval for a merger.

Industry experts say British law firms haven't become significant players in the U.S. market because trans-Atlantic differences in culture and compensation practices have made it hard for them to acquire leading American firms. But the management teams at Hogan and Lovells think they have a plan to overcome those obstacles, with Lovells likely moving toward a more-American approach to compensation.

The U.S. is "by far the largest legal market in the world," said law-firm consultant Peter Zeughauser, who is advising Lovells on the proposed combination. "This would enable Lovells to seriously penetrate the market in one fell swoop."

Lawyers said Hogan, in turn, would gain a greater presence in Europe, while both firms would extend their reach in Asia, an increasingly important market.

                                                        *    *    *

But a potential challenge for the two firms, lawyers at other firms said, will be marrying their contrasting styles. Hogan is considered relatively hard charging, paying partners partly based on how much business they bring in. Lovells takes a different approach, compensating partners partly based on their seniority.

In a Hogan-Lovells deal, Lovells likely would rely more on business generation, among other factors, in compensating partners, according to Mr. Zeughauser, who was retained by the firm after the merger talks were under way. Hogan, lawyers say, does factor in other criteria in awarding pay, including whether partners are collegial and actively mentor junior lawyers.

Cultural and compensation differences have stood in the way in past trans-Atlantic mergers.

See the full article here.

by Chris Berg | with no comments
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Intergalactic Contracts?
Thu, Oct 29 2009 12:33 PM

I'm guessing not too many people reading this blog have tried out for America's Got Talent. If you had, you'd notice some interesting language in the release you had to sign before you could join David Hasselhoff and Sharon Osbourne on screen. The contract stated that any footage could be "edited, in all media, throughout the universe, in perpetuity." Now I realize we don't have too many aspiring reality TV stars reading this blog, but the ever expanding scope of language included in contracts may impact all of our practices.

Decked out in sequined black and gold dresses, Anne Harrison and the other women in her Bulgarian folk-singing group were lined up to try out for NBC's "America's Got Talent" TV show when they noticed peculiar wording in the release papers they were asked to sign.

Any of their actions that day last February, the contract said, could be "edited, in all media, throughout the universe, in perpetuity."

She and the other singers, many of whom are librarians in the Washington, D.C., area, briefly contemplated whether they should give away the rights to hurtling their images and voices across the galaxies forever. Then, like thousands of other contestants, they signed their names.

Ms. Harrison figured the lawyers for the show were trying to hammer home the point that contestants have no rights to their performances, "but I think they're just lazy and don't want to write a real contract," she says.

Lawyers for years have added language to some contracts that stretches beyond the Earth's atmosphere. But more and more people are encountering such everywhere-and-forever language as entertainment companies tap into amateur talent and try to anticipate every possible future stream of revenue.

Experts in contract drafting say lawyers are trying to ensure that with the proliferation of new outlets -- including mobile-phone screens, Twitter, online video sites and the like -- they cover all possible venues from which their clients can derive income, even those in outer space. FremantleMedia, one of the producers of NBC's "America's Got Talent," declined to comment on its contracts.

See the full article here.

by Chris Berg | with no comments
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ACORN Pleads Not Guilty in Nevada
Thu, Oct 29 2009 10:10 AM

UPI reports that "ACORN and its formal deputy regional director [Amy Busefink] have entered not guilty pleas to charges of violating Nevada's voter-registration laws."

The charges stem from ACORN's voter registration efforts in Las Vegas during the months leading up to the November General Election. (Please click here for the original Las Vegas Sun story on the arrests.) Similar to the ongoing investigation in Allegheny County, PA, ACORN incentivized their employees to register a certain quota of voters per shift. Those that didn't cross that threshold were terminated. There was an additional incentive scheme called "Blackjack" that would reward a canvasser who brought in 21 or more completed voter registration forms per shift with a $5.00 bonus.

Authorities in Las Vegas had been tipped off to ACORN's voter registration practices when the Clark County Registrar of Voters complained that their office had received large number of fraudulent forms. An investigation by a special task force ensued which ultimately led to a raid on ACORN's Las Vegas office last October. In August, one of the masterminds of the scheme agreed to a plea deal in exchange to testify against ACORN itself and ACORN's former regional field director Amy Busefink. Click here for the original complaint.

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How Do You Staff the Government? The Obama Administration Could Use Some Advice
Thu, Oct 29 2009 8:35 AM

When Obama was swept into office on waves of hope and change one of the administration's first actions was to reward the unions. In a swift payoff to government unions OPM decreed that agencies should reduce spending on contractors and shift duties to permanent employees.

The hypocrisy was rife when OPM then sought to contract out its human resources positions. They sought an outside contractor to run the Talent Services Group because "because the OPM doesn't have the staff to do the job." The government abandoned this plan once the Washington Post caught wind of it.

OPM is still having troubles. Now the government has decided to get serious. No they're not making Mitt Romney the Government Jobs Czar. They have turned to academia for advice.

The 40 people who met behind closed doors in the Ronald Reagan Building on Wednesday weren't in a position to make any decisions about fixing the federal government's recruitment and hiring process, but their discussion could have a lasting impact on federal policy.

The Harvard Kennedy School, along with the University of Maryland and the Office of Personnel Management (OPM), organized the six-hour meeting of administration officials, members of Congress, Capitol Hill staffers, employee organization heads, private sector leaders, good government types and academics.

It was an invitee-only, off-the-record session that participants described as a candid conversation about the issues facing Uncle Sam as he tries to overhaul a personnel employment process that seems stuck in the mud.

Although meetings like that sometimes reek of elitism and secrecy, participants said there was a valuable exchange of ideas from a broad range of voices that could help Sam get hiring right.

*    *    *

Private-sector participants urged government officials to make greater use of data and metrics to keep track of how they are doing in their recruiting and hiring efforts.

After the session, David Ellwood, dean of the Harvard Kennedy School and co-chairman of the meeting, said the government's ability to deal with a range of issues, including problems as big as pandemics and global warming, depends on the quality of its staff. So, although the federal workforce gets far less attention than those issues, Ellwood said, "it is by definition every bit as important."

See the full article here.

by Chris Berg | with no comments
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Where in the World is Wade Rathke?
Wed, Oct 28 2009 3:35 PM

I'm not sure if it rises to the level of Where in the World is Carmen Sandiego or even Where in the World is Matt Lauer but I've been curious where in the world is Wade Rathke? Since I saw him at his book signing I haven't seen or heard much out of ACORN's Founding Father. Has he been laying low in New Orleans? Travelling the country selling his book?

If you guessed trekking around Thailand and India you'd be correct.

He's been hanging around with "director of the AFL-CIO's Solidarity Center for Thailand," attending meetings of the Organizers Forum, he's meeting with "the Mother Theresa of southeast Asia" and even living it up at the ACORN Diwali Party in Mumbai! I wish my travel schedule were so action packed.

Here's one of Rathke's updates from the road:

Delhi Upgraded to business class from Bangkok to Delhi, which was a rare and wonderful treat, but finding that my bag had gone missing on the exchange took a bit of the thrill off it.  There seems to be a lot of a bit of this and a bit of that going on these days.

Waiting for the plane earlier in Chiang Mai while seated at the Dairy Queen, a hot dog in my hand and my feet stretched over to my carry-on, a random middle aged fella in shorts, a t-shirt, and a big smile comes up out of nowhere and says, "Hey, sorry to interrupt, but are you the guy who owns ACORN?"  I answer, "ACORN's a non-profit, no one owns it, but I founded the organization and worked there for 38 years."  He then rejoins that he had seen me on TV and thought he recognized me.  I quip that it had been a good time to "be in Thailand" and across the world from all of that since "half of my emails are threatening and the other half want to work with me to organize in Guatemala, Costa Rica, Zambia, Belize, South Africa, and elsewhere."  He says, "Well, good luck and hang in until you win!"  I shook his head and then wished I had asked him where he was from in the world.

Like I say, these are strange days.

by Chris Berg | with no comments
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ACORN Shenanigans in the House Financial Services Committee
Wed, Oct 28 2009 1:56 PM

Byron York at the Washington Examiner revealed some interesting activity that went on late last week in the House Financial Services Committee during a vote on the Consumer Financial Protection Agency (CFPA). According to CNN, "[t]he consumer agency would be a brand new regulator whose chief concern is looking out for consumers. It would write rules aimed at ensuring that financial products like mortgages and credit cards are fair, more transparent and more easily understood." Spencer Bachus (R-AL) led the Republican opposition to the legislation, arguing that it "would create a massive government agency headed by a czar-like director with the power to ration consumer credit and impose taxes and fees on small businesses." (Please click here for the Republican alternative.)

York explains that, [a]lthough the proposed Consumer Financial Protection Agency . . . has nothing to do with community organizing, Democrats offered an amendment that could allow ACORN and groups like it to participate in the new agency. Republicans offered an amendment of their own, designed to stop the Democratic one." Here is where the trickery came in:

The bill creates two boards. One, the Oversight Board, will be the key panel giving advice to the director of the new agency. The bill says the Oversight Board will have seven members and specifies who those members will be: the chairman of the board of governors of the Federal Reserve; the head of the agency responsible for chartering and regulating national banks; the chairman of the Federal Deposit Insurance Corporation; the chairman of the National Credit Union Administration; the chairman of the Federal Trade Commission; the Secretary of the Department of Housing and Urban Development; and the chairman of the liaison committee of representatives of state agencies to the Financial Institutions Examination Council.

That's the Oversight Board. The bill would also create a second board, the Advisory Board, which would offer general advice to the director of the new agency. The bill does not specify how many members the Advisory Board will have, nor who they will be. It just says they should be "experts in financial services, community development, fair lending and civil rights, and consumer financial products or services."

The Oversight Board . . . is clearly the more powerful of the two boards. Since the makeup of the Oversight Board is specified in the bill, Republicans did not expect Democrats to try to open up that board to include openings for ACORN and similar groups. Instead, Republicans expected Democrats to offer an amendment which would make it possible for representatives from ACORN and other groups to serve on the Advisory Board. With that in mind, Republicans prepared an amendment of their own banning ACORN from the Advisory Board. (The central part of the amendment did not go after ACORN by name, but barred individuals from organizations that have been indicted for federal or state election law violations from serving on the board.)

It turns out Republicans were mistaken. … Democratic Rep. Maxine Waters introduced an amendment that would add five members, not to the Advisory Board, but to the Oversight Board, with all five chosen from among "experts in the fields of consumer protection, fair lending and civil rights, representatives of depository institutions that primarily serve underserved communities, or representatives of communities that have been significantly impacted by higher-priced mortgage loans." That description could easily fit ACORN, or any number of other pro-Democratic groups. In any event, these new members would serve alongside the top officials from the Fed, FDIC, HUD, and the rest of the Oversight Board. Waters did not waste her time with the lower-level Advisory Board; she went straight for the top, the Oversight Board.

But Republicans had prepared an amendment which covered just the Advisory Board. "We can only anticipate what she's going to offer," says Rep. Michelle Bachmann, who introduced the Republican amendment, referring to Waters. "We anticipated the Advisory Board."

Committee Chair Barney Frank (D-MA) was quick to what was going on and "quickly order[ed] a vote on the amendments." The committee approved the bill (with the amendments) by a vote of 39 to 29. However, the issue is not yet settled:

Bachmann knows that Democrats managed to open up the Oversight Board to ACORN and other groups without even being forced to publicly defend the decision. Now, she hopes they will be forced to vote up or down on a proposal to bar ACORN from the Oversight Board. "What we're going to try to do is offer an amendment when the bill goes to the floor," says Bachmann. "That's the goal -- to keep people who are from ACORN from serving on the Oversight Board."

Whether or not the creation of the "Consumer Financial Protection Agency" is a wise idea can be reasonably debated. However, can a member of Congress say with a straight face that a representative from an organization like ACORN should sit on a board with that kind of power and oversight?

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The Employee Free Choice Act – “Happy Bunny Hugs Legislation”
Wed, Oct 28 2009 10:56 AM

There's a new video making the rounds explaining Card Check and the improperly titled Employee Free Choice Act.

by Chris Berg | with no comments
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Renting Out the White House
Wed, Oct 28 2009 9:43 AM

President Obama campaigned on how he was going to clean up Washington. He was to be this transformational figure who would root out corruption. Now we've learned that much like the Washington Post, the White House is offering up its services to the highest bidder. I'm going to put together some information on just how many regulations have been violated. For now you can view the full report here.

President Sells Access To And Amenities Of 1600 Pennsylvania Avenue To Highest Democrat Bidders

"Bill Clinton turned the White House into a hotel and coffee shop. Now President Obama has turned the White House into a full service resort complete with amenities for the highest Democrat bidder.  The seriousness of this issue requires an immediate investigation looking into the degree and details of fundraising efforts between the White House and DNC, whether there was any quid pro quo offered to donors, and the names of White House officials who were involved in such activities.  The White House should also immediately release the names of donors who have accessed these perks or received special briefings from administration officials.  Candidate Obama pledged to clean up the muddy waters of Washington, but President Obama has jumped in head first." – RNC Chairman Michael Steele

OBAMA REWARDS TOP DEM DONORS, BUNDLERS WITH V.I.P. TREATMENT AT WHITE HOUSE

Obama Awards Top Donors With "VIP Access To The White House." "During his first nine months in office, President Obama has quietly rewarded scores of top Democratic donors with VIP access to the White House, private briefings with administration advisers and invitations to important speeches and town-hall meetings… High-dollar fundraisers have been promised access to senior White House officials in exchange for pledges to donate $30,400 personally or to bundle $300,000 in contributions ahead of the 2010 midterm elections, according to internal Democratic National Committee documents obtained by The Washington Times." (Matthew Mosk, "EXCLUSIVE: Democratic Donors Rewarded With W.H. Perks," The Washington Times, 10/28/09)

DNC Created Menu  Of "Exclusive Access Opportunities." "The DNC has presented a menu of exclusive access opportunities to top givers, according to internal DNC documents provided to potential donors and obtained by The Times… One top donor described in an interview with The Times being given a birthday visit to the Oval Office. Another was allowed use of a White House-complex bowling alley for his family. Bundlers closest to the president were invited to watch a movie in the red-walled theater in the basement of the presidential mansion." (Matthew Mosk, "EXCLUSIVE: Democratic Donors Rewarded With W.H. Perks," The Washington Times, 10/28/09)

Donors Offered Parties In White House Bowling Alley And Movie Theater. "One top donor described in an interview with The Times being given a birthday visit to the Oval Office." Another was allowed use of a White House-complex bowling alley for his family. Bundlers closest to the president were invited to watch a movie in the red-walled theater in the basement of the presidential mansion." (Matthew Mosk, "EXCLUSIVE: Democratic Donors Rewarded With W.H. Perks," The Washington Times, 10/28/09)

Obama Invites "Top New York Bundler" Golfing In Martha's Vineyard, Treats Donors To "Lavish White House Reception." "Mr. Obama invited his top New York bundler, UBS Americas CEO Robert Wolf, to golf with him during the president's Martha's Vineyard vacation in August. At least 39 donors and fundraisers also were treated to a lavish White House reception on St. Patrick's Day, where the fountains on the North and South Lawns were dyed green, photos and video reviewed by The Times and CBS News also show." (Matthew Mosk, "EXCLUSIVE: Democratic Donors Rewarded With W.H. Perks," The Washington Times, 10/28/09)

Select Individuals "Provided Access To A Series Of Invite-Only Briefings By Senior Administration Officials Organized By The DNC." "'I don't think it's surprising that people that support the president do go to functions at the White House and have other access, but there are many, many more Americans who attend events and town halls and other things at the White House every single day,' DNC spokesman Brad Woodhouse said… Only select members of the public, however, were provided access to a series of invite-only briefings by senior administration officials organized by the DNC." (Matthew Mosk, "EXCLUSIVE: Democratic Donors Rewarded With W.H. Perks," The Washington Times, 10/28/09)

by Chris Berg | with no comments
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Wednesdays on the Steps – NAMUDNO Election Law Update
Wed, Oct 28 2009 9:12 AM

Sorry guys, no oral arguments this week. Despite the fact that there are no arguments I have been combing the news, trying to find something of interest that relates to the Court. I could reenact the classics with some Supreme Court bobbleheads. Or I could point you to this quirky post about Chief Justice Roberts. But I found something a bit more serious.

You'll recall the case of NAMUDNO vs. Holder. It dealt with whether a Texas utility district could seek an exemption from the pre-clearance requirements of the Voting Rights Act. After a surprising Supreme Court decision the case has seemingly run its course. Once remanded to the District Court the parties have reached an agreement.

Last month RNLA member David McFadden reviewed Abigail Thernstrom's book Voting Rights and Wrongs: The Elusive Quest for Racially Fair Elections. In that review he examined NAMUDNO and Section 5 of the Voting Rights Act:

The weakness of the evidence of continuing violations of the Fifteenth Amendment raises the question of whether, in renewing section 5, Congress exceeded its authority to enforce the Fifteenth Amendment. Thernstrom discusses expectantly and hopefully a case that was pending before the Supreme Court as she wrote. That case, Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), gave the Court the opportunity to find section 5 unconstitutional. But it was not to be. The decision was handed down the same month as the book was published (June 2009) and avoided deciding the constitutional issue. Perhaps a second edition of the book could consider NAMUDNO.

In a second edition there would be much to say about NAMUDNO, for while the Court did not decide the constitutional issue, it discussed it extensively and ruled on an alternative ground that holds some promise. Writing for the Court, Chief Justice Roberts cast doubt on the constitutionality of section 5. In dicta, the chief justice discussed the dramatic increases in registration of minorities, the substantial federalism costs imposed by section 5, and the antiquity of the coverage formula. Justice Thomas, concurring in part and dissenting in part, contended that the Court should have reached the constitutional question and held section 5 unconstitutional. No one wrote separately to defend section 5.

The holding of the case is also intriguing. The utility district had sought a declaration that section 5 was unconstitutional or, in the alternative, a declaration that the utility district could avail itself of the provision in section 4 allowing states and political subdivisions to bail out of sections 4 and 5 if they meet certain requirements. The Court agreed with the utility district's statutory argument and, having granted relief on statutory grounds, adhered to its principle of not reaching constitutional questions unnecessarily. The resolution of the statutory question broadened the meaning of "political subdivision" as that term is used in section 4. The Court noted that only seventeen jurisdictions out of more than 12,000 had successfully bailed out.

The holding suggests a solution to section 5's impositions short of a declaration of unconstitutionality. The dicta raises the hope that such a declaration is possible􀂲if another jurisdiction is willing to challenge section 5 (only two governors submitted amicus briefs on behalf of the utility district). Yet all actions, however slight, taken by the judiciary or by political appointees at the Justice Department to curb the excesses of the Voting Rights Act have been met with gales of protests from civil rights activists, who waive the bloody shirt of disenfranchisement and Jim Crow. That sort of response can be expected for any effort to follow up on NAMUDNO. But the arguments and the mettle of Voting Rights and Wrongs, with or without a second edition, will be an invaluable aid in such an effort, an effort that must be undertaken unless we are to become a nation of cowards.

We've learned that once the case was remanded to the District Court on September 22nd DOJ and NAMUDNO rapidly came to an agreement. I guess we won't be seeing NAMUDNO before the Court again. SCOTUS BLOG has a more thorough discussion of the case and has a copy of the proposed consent decree.

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