[EL] Sec. 3 Bail-in

[Samuel Bagenstos]

Just to expand on what I said on twitter, I think the most direct reading of the statutory text, and the one the court adopted in Jeffers, is that Section 3(c) bail-in requires a finding that the jurisdiction engaged in intentional discrimination warranting equitable relief.  Intentional discrimination is typically proven through circumstantial evidence -- so the invocation of legislative privilege (whatever we may think of its propriety) shouldn't make it impossible to prove.  And intentional discrimination does not require that discrimination was the sole or predominant motive, at least according to what has up to now been the standard mode of pleading constitutional violations.

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 9, 2013, at 3:34 PM, Justin Levitt wrote:

> 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" 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
>> 
>> 
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
> 
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130709/60d9e161/attachment.html>