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

Wed Jul 3 11:14:32 PDT 2013

For what it's worth, DOJ frequently has used the counterpart ot bail-in,
section 3(a) (to allow the appointment if federal observers in non-Section
4 areas) in recent years - pretty routinely, in fact.  Sections 3(a) and
(c) have the same legal standard.   We used 3(c) in a couple of NM cases in
1993, applying it to all voting changes,  and in Garza v.Los Angeles County
DOJ got 3(c) for redistricting only.

On Wed, Jul 3, 2013 at 1:47 PM, Justin Levitt <levittj at lls.edu> 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<http://department-lists.uci.edu/pipermail/law-election/2013-June/007237.html>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<http://txredistricting.org/post/54362393829/san-antonio-court-starts-process-for-deciding-if-texas>,
> when it refused to dismiss<http://redistricting.lls.edu/files/TX/20130701%20MTD%20denied.pdf>the case as moot.
>
> But there are also now different maps passed by the legislature and signed just
> last week<http://www.tlc.state.tx.us/redist/pdf/news_announcements/GovSig.pdf>.
> 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<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<http://electionlawblog.org/?p=52569>
> ****
>
> Posted on July 3, 2013 10:16 am <http://electionlawblog.org/?p=52569> by Rick
> Hasen <http://electionlawblog.org/?author=3> ****
>
> This just-filed DOJ motion<http://electionlawblog.org/wp-content/uploads/241-motion-sec-3redux.pdf>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<http://t.co/3UzRoJ9E8F>
> .)****
>
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> Posted in redistricting <http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>,
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>
> -- ****
>
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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 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://law.uci.edu/faculty/page1_r_hasen.htmlhttp://electionlawblog.org
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