[EL] Is There A Jurisdictional Problem with A Bail-In Request in Texas?
Rick Hasen
rhasen at law.uci.edu
Thu Jul 25 12:21:08 PDT 2013
<http://electionlawblog.org/>
Is There A Jurisdictional Problem with A Bail-In Request in Texas?
<http://electionlawblog.org/?p=53465>
Posted on July 25, 2013 12:19 pm <http://electionlawblog.org/?p=53465>
by Rick Hasen <http://electionlawblog.org/?author=3>
Michael Ellement emails:
I enjoyed your post today <http://electionlawblog.org/?p=53425> on
General Holder's comments regarding a bail in of Texas. I am
curious though on your thoughts about the court's jurisdiction in
the case, and the possibility of the bail in. Section 3 states that
the District Court can "retain jurisdiction" after finding a
violation of the fourteenth or fifteenth amendments. Perhaps I have
not followed the Texas litigation closely enough, but at least in
regards to the Voter ID law I only recall the court reaching the
preclearance question. In order for the bail-in mechanism to apply,
it would seem that the Texas litigation would have to begin anew,
with litigants proving a constitutional violation, and then the
court retaining jurisdiction after a specific finding on the
constitutional question. Holder's comments, to me, read as a
somewhat backwards looking view of Section 3 --- since Texas failed
preclearance in the past, it is appropriate for the court to now
impose the bail-in procedure. That view does not fit with the
"retain jurisdiction" language of the statute, which would only
allow a bail-in after the constitutional challenge has been
litigated. In other words, there is no such thing as a bail-in suit
standing alone. Instead, bail-in only works as a remedy following a
constitutional violation. That seems premature in Texas's case,
since a constitutional challenge has not been fully litigated. But,
perhaps I am missing something and you can correct me.
I am no expert on Section 3 (though I guess we will all quickly get up
to speed on it) and on its jurisdictional niceties. So I'm not sure yet
on which court this is appropriate or what needs to be final. The
findings of intentional discrimination came in one of the Texas
redistricting cases. Here's what I wrote about those findings at the
time <http://electionlawblog.org/?p=39233>:
3. Most striking substantively about the ruling is that although the
judges differ a bit on a technical point about what counts as a
"crossover" district for purposes of retrogression, they agree
unanimously about Texas discriminatory intent when it comes to the
congressional redistricting. This part of the ruling seemed especially
compelling:
There is no direct evidence that the enacted plan was motivated by
discriminatory purpose; no emails, letters, or testimony about
conversations between those members involved in congressional
redistricting disclose such an intent. Cf. Diaz v. Kraft Foods
Global, Inc., 653 F.3d 582, 587 (7th Cir. 2011) ("Direct evidence is
something close to an explicit admission . . . that a particular
decision was motivated by discrimination; this type of evidence is
rare, but it 'uniquely reveals' the . . . intent to discriminate."
(quoting Rudin v. Lincoln Land Cmty. Coll., 420 F.3d 712, 720 (7th
Cir. 2005))). Thus, we must assess the circumstances surrounding the
drawing of the new maps. Our analysis follows the Supreme Court's
decision in Arlington Heights, which, as discussed in more detail
above, identifies five "subjects of proper inquiry in determining
whether racially discriminatory intent existed": (1) discriminatory
impact, (2) historical background, (3) sequence of events leading up
to the decision, (4) procedural or substantive deviations from the
normal decisionmaking process, and (5) contemporaneous viewpoints
expressed by the decisionmakers. Arlington Heights, 429 U.S. at 266-68.
As we have already noted, CDs 9, 18, and 30 are the only Black
ability districts in the benchmark and enacted plans. CD 9 is
located south of Houston and incorporates parts of Harris and Fort
Bend Counties, CD 18 is located within Houston, and CD 30 is within
Dallas. The Texas legislature proposed substantial changes to these
districts even though the 2010 Census data shows the population in
each was already close to the ideal size.30 We have already
determined that these changes are not retrogressive, but they raise
serious concerns about what motivated the Congressional Plan.
Congressman Al Green, who represents CD 9, testified that
"substantial surgery" was done to his district that could not have
happened by accident. The Medical Center, Astrodome, rail line, and
Houston Baptist University --- the "economic engines" of the
district --- were all removed in the enacted plan. Trial Tr.
124:6-20, Jan. 20, 2012 AM; see also Defs.' Ex. 721, Pre-Filed Test.
of Congressman Alexander Green 3-4. The enacted plan also removed
from CD 9 the area where Representative Green had established his
district office. Trial Tr. 124:16, Jan. 20, 2012 AM. Likewise,
Congresswoman Sheila Jackson Lee, who represents CD 18, testified
that the plan removed from her district key economic generators as
well as her district office. Id. at 13:13-14:5, Jan. 23, 2012 PM.
Congresswoman Eddie Bernice Johnson of CD 30 also testified that the
plan removed the American Center (home of the Dallas Mavericks), the
arts district, her district office, and her home from CD 30. Id. at
79:20-81:16, Jan. 18, 2012 PM. The mapdrawers also removed the
district office, the Alamo, and the Convention Center (named after
the incumbent's father), from CD 20, a Hispanic ability district.
Mem. Opp. Summ. J. Ex. 16, Decl. of Charles A. Gonzalez ¶¶ 3-9, 11,
ECF No. 77.
No such surgery was performed on the districts of Anglo incumbents.
In fact, every Anglo member of Congress retained his or her district
office. Trial Tr. 14:12-15, Jan. 23, 2012 PM. Anglo district
boundaries were redrawn to include particular country clubs and, in
one case, the school belonging to the incumbent's grandchildren. See
Mem. Opp. Summ. J. Exs. 11, 18-19, ECF No. 77. And Texas never
challenged evidence that only minority districts lost their economic
centers by showing, for example, that the same types of changes had
been made in Anglo districts.
The United States and the Intervenors convincingly argue --- and
Texas does not dispute --- that removing district offices from
minority ability districts but not from Anglo districts has a
disparate impact on the minority districts. See U.S. Post-Trial Br.
26. District offices help "provide[] a meaningful connection between
a member and the people represented." Defs.' Ex. 721, Pre-Filed
Test. of Congressman Alexander Green 4. Their locations are often
well known to constituents, often placed to be easily accessible by
freeway and public transportation, and serve as a way for members of
Congress to communicate with and provide services to their
constituents. See id. *We are likewise troubled by the unchallenged
evidence that the legislature removed the economic guts from the
Black ability districts*. Texas does not dispute that part of a
member of Congress's job is to "bring economic generators that will
benefit that community," id. Removing those economic generators
harms the district. Id. at 3-4; U.S. Post-Trial Br. 26*. *
*The only explanation Texas offers for this pattern is
"coincidence."31 Trial Tr. 95:5-19, Jan. 25, 2012 PM. But if this
was coincidence, it was a striking one indeed*. It is difficult to
believe that pure chance would lead to such results. The State also
argues that it "attempted to accommodate unsolicited requests from a
bipartisan group of lawmakers," and that "[w]ithout hearing from the
members, the mapdrawers did not know where district offices were
located." Tex. Post-Trial Br. 29. But we find this hard to believe
as well. We are confident that the mapdrawers can not only draw maps
but read them, and the locations of these district offices were not
secret. The improbability of these events alone could well qualify
as a "clear pattern, unexplainable on grounds other than race,"
Arlington Heights, 429 U.S. at 266, and lead us to infer a
discriminatory purpose behind the Congressional Plan.
4. The evidence of discriminatory intent is important not just for the
likelihood that the Supreme Court will affirm this decision even if it
disagrees on some aspects of the retrogression standard. It also serves
as some evidence which could be used to argue, in the /Shelby County/
case or elsewhere, that covered jurisdictions still discriminate on the
basis of race in making voting-related decisions. (If this was not done
to Anglo Democrats, the evidence is even stronger than if it could be
explained on the basis of pure partisanship.) The Court was careful to
note that Texas did /not /challenge the constitutionality of section 5
in this case. And the Court rejected a number of Texas's arguments that
it should read section 5 narrowly to avoid a constitutional question.
Whether the Supreme Court will agree with the district court on this
point is anyone's guess. Indeed, this case could be mooted if the
Supreme Court strikes down Section 5 (in the Shelby County case or
another) before the Court decides this case on the merits.
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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 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
hhttp://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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