Post submitted by Remington A. Gregg, former HRC Legislative Counsel

Today, Stanford law professor Pamela Karlan, who is openly gay, takes up her position as Deputy Assistant Attorney General in the Department of Justice (DOJ) Civil Rights Division, where she will be in charge of the voting rights section.  Senate confirmation was not required.

Congress enacted the Voting Rights Act (VRA) in 1965 to address overwhelming levels of discriminatory voting practices, and the act has been re-authorized many times since.   Section 5 of the VRA requires certain states and localities – with histories of racial discrimination – to “preclear” any changes to their voting laws or procedures with the DOJ or D.C. federal district court.  Last year, in Shelby County v. Holder, the Supreme Court invalidated section 4(b), which laid out the formula for which states and localities fall under this requirement.  Even though section 5 remains in place, it is virtually without teeth until Congress passes a new law for determining which states would be covered.

DOJ and federal courts can still monitor the actions of jurisdictions with histories of voting discrimination, but it will now take more time, resources, and creativity.  This is where Karlan’s expertise as a voting rights expert will be invaluable.  She’s also a co-author of a seminal case book on the issue.

As a law clerk to former Supreme Court Justice Harry Blackmun, it is rumored that Karlan wrote the dissent in the now-infamous case, Bowers v. Hardwick, in which the Court held that there was no constitutionally protected right to engage in homosexual sex.  Almost twenty years later, Lawrence v. Texas directly overturned that case, declaring: “Bowers was not correct when it was decided, and it is not correct today.”  (In keeping with appropriate clerking decorum, Karlan has maintained silence on the dissent’s primary authorship.)

Karlan’s expertise and knowledge will make her a leading voice on what we hope will be the Obama administration’s robust protection of voting rights in the wake of Shelby County.  She will counsel the Attorney General well, and we look forward to working with her in the years to come.

Filed under: Federal Advocacy

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