[EL] Sec. 3 Bail-in

Tue Jul 9 21:38:05 PDT 2013

I'm not intimately familiar with the Jeffers litigation, though I know others on the list are.  It looks like the Supreme Court dismissed Arkansas's appeal because of a settlement of some kind.  The Court did not affirm, even summarily.  The SG's amicus brief in the Supreme Court in that case, signed by Ken Starr as SG and John Roberts as Deputy SG, is interesting.  It says that the preclearance remedy imposed by the district court was proper under Section 3(c), though it disagrees with other aspects of the remedy the court ordered.

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 10, 2013, at 12:28 AM, Michael P McDonald wrote:

> Thanks to all for their observations.
> 
> It appears that there is only one case where Sec. 3 was invoked without a consent decree, Jeffers v. Clinton.
> 
> Here is a link to the decision, for those interested.
> 
> http://scholar.google.com/scholar_case?case=7592504423905884776&hl=en&as_sdt=2&as_vis=1&oi=scholarr
> 
> Interestingly, Plaintiffs argued an effects standard should be applied to Sec. 3 bail-in and Defendants argued intent. The court takes some time reading the proverbial Supreme Court tea leaves, summing up:
> 
> "We read the signs as pointing rather firmly towards a requirement that intent be proved. Mere numbers, short of a majority, are not conclusive, but it is of some relevance that more Members of the Court thought intent was required in City of Mobile, than took the opposite position." (at 588)
> 
> The district court found intentional discrimination, using circumstantial evidence of past instances where Black candidates were successful at winning plurality elections, after which the state moved to enact majority requirements.
> 
> "This series of laws represents a systematic and deliberate attempt to reduce black political opportunity. Such an attempt is plainly unconstitutional. It replaces a system in which blacks could and did succeed, with one in which they almost certainly cannot. The inference of racial motivation is inescapable." (at 595)
> 
> The District court only bailed-in Arkansas on the narrow issue of adopting majority vote requirements.
> 
> The Supreme Court reviewed this case, and agreed with bail-in for majority-vote requirements. I can't find that case on-line, perhaps someone with access to the appropriate database would be kind enough to forward it to me? (Clinton v. Jeffers, 498 U.S. 1129 (1991))
> 
> One case appears to me to be a thin record of an intent standard in Sec. 3. The Jeffers Plaintiffs argued for an effects standard and the Jeffers court acknowledges there may be an argument for an effects standard (although a good decision should thoughtfully consider all sides). It is also instructive that the Jeffers court discussed the then-operational Section 4 coverage formula as a reason why a higher standard might be applied to Sec. 3 bail-in.
> 
> With Kennedy expressing interest in the Shelby oral arguments of using Sec. 2 litigation with Sec. 3 bail-in, I suspect the four liberal justices would join Kennedy if he adopted an expansive view of Sec. 3 bail-in. I expect that whatever happens in Texas with regards to the request to bail-in the state, through the ongoing Sec. 2 redistricting litigation, the decision will eventually make its way to the Supreme Court for Kennedy to give us his thinking on the matter. At the least, the lower courts are going to need some guidance on what circumstantial evidence is sufficient to invoke Sec. 3 bail-in.
> 
> ============
> 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
> From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Samuel Bagenstos [sambagen at umich.edu]
> Sent: Tuesday, July 09, 2013 4:25 PM
> To: Justin Levitt
> Cc: law-election at department-lists.uci.edu
> Subject: Re: [EL] Sec. 3 Bail-in
> 
> 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
>>> 
>>> 
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