[EL] Big DOJ move against Texas in voting rights suit

Wed Jul 3 11:13:18 PDT 2013

I agree with Justin.  DOJ will have to say something about this motion.  But because of the procedural posture there are lots of off-ramps they can take before making this the case in which they explain how they're going to deal with bail-in (in default of congressional action) going forward.  

Samuel R. Bagenstos
Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109
sambagen at umich.edu
http://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=sambagen
http://disabilitylaw.blogspot.com/
Twitter: @sbagen

On Jul 3, 2013, at 2:02 PM, Justin Levitt wrote:

> And there's a further twist: the motion that Rick passed on was filed in the DC three-judge trial court convened to adjudicate Texas's request for preclearance.  As the groups seeking bail-in acknowledge, bail-in has previously been a remedy sought by plaintiffs bringing an affirmative challenge to an allegedly discriminatory law.  It's never been sought by the defendants (those who are protesting a proposed change) in a preclearance suit -- because, as the motion points out, before Shelby County there was no reason to ask the preclearance court for bail-in, because the jurisdiction in question was necessarily subject to a preclearance requirement.  
> 
> So this is new ground.  It's also a motion filed in a case where the DOJ is the named defendant -- which means that the DOJ is likely to have to respond one way or another.  Still, because of the odd procedural posture, I'm still not sure whether the DOJ's response should be taken as an indication of what it thinks about bail-in more generally.
> 
> Justin
> 
> On 7/3/2013 10:47 AM, Justin Levitt wrote:
>> "Interesting" is right.  
>> 
>> The current procedural posture is that plaintiffs are seeking bail-in based on a finding of intentional discrimination for the 2011 maps (building off of the DC preclearance court's findings, some of which indicated that Texas hadn't disproved intentional discrimination, some of which indicated that intentional discrimination was proven).  The San Antonio court kept the 2011 case alive -- and preserved the potential for a finding of discrimination and a bail-in order -- on Monday, when it refused to dismiss the case as moot.
>> 
>> But there are also now different maps passed by the legislature and signed just last week.  Those maps are almost identical to maps approved as interim plans by the San Antonio court last year (the state Senate and Congressional plans are identical; the state House plans were slightly modified).  And while there might well be legal deficiencies under, say, Section 2 in those interim plans, the fact that they were approved by a federal         court makes a finding of intentional discrimination with respect to the 2013 maps tougher.
>> 
>> In sum, there are lots of problems with the 2011 maps, and if there had been no new maps passed, I agree that DOJ participation would have been more straightforward (and more of a harbinger).  But the current procedural posture is sufficiently convoluted that I don't know if we should read anything further into either action or inaction by the DOJ.
>> 
>> Justin
>> On 7/3/2013 10:25 AM, Rick Hasen wrote:
>>> This will be an interesting test for DOJ.
>>> 
>>> On 7/3/13 10:24 AM, George Korbel wrote:
>>>> I presume doj will act.
>>>> 
>>>> 
>>>> On Jul 3, 2013, at 12:22 PM, "Pildes, Rick" <pildesr at exchange.law.nyu.edu> wrote:
>>>> 
>>>>> Rick:  You want to make an urgent correction.  This is not DOJ acting – at least not the motion you attached.  This is from the intervenor groups.  They say DOJ                     hasn’t taken a position yet.  Unless I am missing something, you’ll want to fix this right away.
>>>>>  
>>>>> Rick
>>>>>  
>>>>> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Rick Hasen
>>>>> Sent: Wednesday, July 03, 2013 1:18 PM
>>>>> To: law-election at UCI.edu
>>>>> Subject: [EL] Big DOJ move against Texas in voting rights suit
>>>>>  
>>>>> Major Voting Rights Development: DOJ Seeks to Have Texas Bailed In Under Section 3 of the Voting Rights Act
>>>>> 
>>>>> Posted on July 3, 2013 10:16 am by Rick Hasen
>>>>> This just-filed DOJ motion in the Texas redistricting case is a BFD:
>>>>> 
>>>>> The State of Texas is undoubtedly the prime example of why at least some pre-enforcement review under the Voting Rights Act is still necessary to vindicate the voting rights of minority citizens. Texas has engaged in persistent and intentional efforts to diminish the voting                               strength of voters of color, and to exclude them from the political process. If ever a jurisdiction was deserving of being affirmatively subjected to the preclearance requirement (being “bailed-in”) under Section 3(c) of the Act, Texas is that jurisdiction.
>>>>> 
>>>>> I’ve been skeptical that Section 3 bail-in can be an effective substitute for section 5 preclearance (mainly because it is onerous to bring a section 3 suit and most local jurisdictions—where lots of mischief can take place, likely won’t be subject to a bail-in action).  But this is an important test case, and the finding of intentional race discrimination on Texas’s part in the Texas redistricting case gives DOJ a fighting chance here.  (For more on how Congress could strengthen section 3 bail-in as part of a response to Shelby County, see Rick Pildes’s excellent post.)
>>>>> 
>>>>> <image001.png>
>>>>> Posted in redistricting, Supreme Court, Voting Rights Act | Comments Off
>>>>> -- 
>>>>> Rick Hasen
>>>>> Chancellor's Professor of Law and Political Science
>>>>> UC Irvine School of Law
>>>>> 401 E. Peltason Dr., Suite 1000
>>>>> Irvine, CA 92697-8000
>>>>> 949.824.3072 - office
>>>>> 949.824.0495 - fax
>>>>> rhasen at law.uci.edu
>>>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>>>> http://electionlawblog.org
>>>>> _______________________________________________
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>>> 
>>> -- 
>>> Rick Hasen
>>> Chancellor's Professor of Law and Political Science
>>> UC Irvine School of Law
>>> 401 E. Peltason Dr., Suite 1000
>>> Irvine, CA 92697-8000
>>> 949.824.3072 - office
>>> 949.824.0495 - fax
>>> rhasen at law.uci.edu
>>> http://law.uci.edu/faculty/page1_r_hasen.html
>>> http://electionlawblog.org
>>> 
>>> 
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