[EL] Sec. 3 Bail-in

[Michael P McDonald]

There has been a Twitter discussion about Sec.3 that Rick suggested moving to the list serve where we can use more than 144 characters....

I've been puzzling over Sec. 3(c), specially the application of an intent standard for bail-in. Sec.3(c) says:

"If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any State or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred...."

Certainly, Sec.2 must be included in statutes to enforce the voting guarantees of the 14th and 15th amendments, so the first hurdle to initiating a Sec.3 claim can be met through Sec. 2 litigation.

But, if a Sec. 2 violation is found, and the court orders a remedy, must the court meet a higher intent standard than the effects standard in Sec. 2 to cover the jurisdiction under Sec. 3? Must the court find that the relief be based in an intent standard for a 14th or 15th amendment violation? Or is the phrasing such that the relief granted under the authority of the Congress to enforce the 14th and 15th amendments by statute sufficient, i.e., a Sec. 2 effect standard is sufficient?

Given that the entire states of Arkansas and New Mexico are covered through Sec.3; if an intent standard was applied, how was that possible? Intent is next to impossible to prove in court, especially where legislatures are involved: not only is legislative privilege often exercised to keep legislators from testifying, but legislatures typically have mixed motives where it is difficult to prove race predominated. What policies did Arkansas and New Mexico enact that raised to a violation of an intent standard?

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Dr. Michael P. McDonald
Associate Professor
George Mason University
4400 University Drive - 3F4
Fairfax, VA 22030-4444

phone:   703-993-4191 (office)
e-mail:  mmcdon at gmu.edu
web:     http://elections.gmu.edu
twitter: @ElectProject
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