[EL] Sec. 3 Bail-in

[Justin Levitt]

In Jeffers v. Clinton, 740 F.Supp. 585 (E.D. Ark. 1990), the three-judge 
court imposing bail-in on Arkansas found that although plaintiffs had 
not proved discriminatory intent in the immediate redistricting case 
that raised the prospect of bail-in, they had shown a pattern of 
intentional discrimination in other election-related acts by local 
officials that justified bail-in for the state as a whole.

The New Mexico case, Sanchez v. Anaya, was resolved by a consent decree 
(including bail-in), without a published court opinion.

Travis Crum's article on the bail-in "pocket trigger" 
<http://ssrn.com/abstract=1516265> describes the circumstances behind 
some of the other bail-in jurisdictions in more detail.

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 7/9/2013 12:13 PM, Michael P McDonald wrote:
> 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?
>
> ============
> 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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