[EL] more news 8/22/13 and drawing lessons from the Texas ID lawsuit
Justin Levitt
levittj at lls.edu
Thu Aug 22 13:17:57 PDT 2013
Just as with the redistricting fights (and with bail-in), I'd be careful
about drawing too many conclusions from a Texas ID suit about how things
might work generally. Whether a preliminary injunction in Texas is
sought or not, and whether one is granted or not, the dispute in Texas
is sufficiently abnormal that it isn't likely to answer Justice
Kennedy's questions about whether such injunctions will be possible in
the normal course.
First, this is a law that's been on the books since 2011. Second -- and
more important -- there has already been a week-long trial in DC. (Even
with that trial evidence, DOJ (and the private plaintiffs that have
already filed suit) may well decide that it's in their interest to
collect more data in order to present the strongest possible section 2
case -- the DC court denied some of the DOJ's attempts to compel
discovery, and plaintiffs now might well want to see whether the Texas
courts take a different view.)
It's going to be vanishingly rare that plaintiffs seeking to stop an
election rule before the next election will already have conducted a
trial on the matter. That may be why Atty Gen Verrilli estimated
(without statistics handy) that less than 25% of successful section 2
suits featured a preliminary injunction. Other experienced DOJ attorneys
have put the rate at "less than 5%, and possibly quite lower.
<http://www.clcblog.org/index.php?option=com_content&view=article&id=506:more-observations-on-shelby-county-alabama-and-the-supreme-court->"
Justin
--
Justin Levitt
Associate Professor of Law
Loyola Law School | Los Angeles
919 Albany St.
Los Angeles, CA 90015
213-736-7417
justin.levitt at lls.edu
ssrn.com/author=698321
On 8/22/2013 12:45 PM, Rick Hasen wrote:
> <http://electionlawblog.org/>
>
>
> Will DOJ Seek Preliminary Injunctive Relief in Texas Voter ID
> Case? Will It Get It? <http://electionlawblog.org/?p=54720>
>
> Posted on August 22, 2013 12:44 pm
> <http://electionlawblog.org/?p=54720> by Rick Hasen
> <http://electionlawblog.org/?author=3>
>
> Remember this exchange from the oral argument
> <http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-96.pdf>in
> /Shelby County/?
>
> JUSTICE KENNEDY: Well, I --- I do think the evidence is very clear
> that Section --- that individual suits under Section 2 type
> litigation were just insufficient and that Section 5 was utterly
> necessary in 1965. No doubt about that.
> GENERAL VERRILLI: And I think it remains true -
>
> JUSTICE KENNEDY: But with --- with a modern understanding of ---
> of the dangers of polling place changes, with prospective
> injunctions, with preliminary injunctions, it's not clear --- and
> --- and with the fact that the government itself can commence
> these suits, it's not clear to me that there's that much
> difference in a Section 2 suit now and preclearance. I may be
> wrong about that. I don't have statistics for it. That's why we're
> asking.
> GENERAL VERRILLI: I --- I don't --- I don't really think that that
> conclusion follows. I think these under the --- there are
> thousands and thousands of these under-the-radar screen changes,
> the polling places and registration techniques, et cetera. And in
> most of those I submit, Your Honor, the --- the cost-benefit ratio
> is going to be, given the cost of this litigation, which one of
> the --- one of the reasons Katzenbach said Section 5 was
> necessary, is going to tilt strongly against bringing these
> suits.Even with respect to the big ticket items, the big
> redistrictings, I think the logic Katzenbach holds in that those
> suits are extremely expensive and they typically result in
> after-the-fact litigation.
> Now, it is true, and the Petitioners raised the notion that there
> could be a preliminary injunction, but I really think the
> Petitioner's argument that Section 2 is a satisfactory and
> complete substitute for Section 5 rests entirely on their ability
> to demonstrate that preliminary injunctions can do comparable work
> to what Section 5 does. They haven't made any effort to do that.
> And while I don't have statistics for you, I can tell you that the
> Civil Rights Division tells me that it's their understanding that
> in fewer than one-quarter of ultimately successful Section 2 suits
> was there a preliminary injunction issued.
>
> So I don't think that there's a basis, certainly given the weighty
> question before this Court of the constitutionality of this law,
> to the extent the argument is that Section 2 is a valid substitute
> for Section 5, I just don't think that the --- that the
> Petitioners have given the Court anything that allows the Court to
> reach that conclusion and of course...
>
> Share
> <http://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D54720&title=Will%20DOJ%20Seek%20Preliminary%20Injunctive%20Relief%20in%20Texas%20Voter%20ID%20Case%3F%20Will%20It%20Get%20It%3F&description=>
> Posted in Department of Justice <http://electionlawblog.org/?cat=26>,
> Supreme Court <http://electionlawblog.org/?cat=29>, voter id
> <http://electionlawblog.org/?cat=9>, Voting Rights Act
> <http://electionlawblog.org/?cat=15> | Comments Off
>
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