[EL] Revising VRA Sec 3

[Joey Fishkin]

I'll add a question of immediate interest in Texas.  When states were covered through the Section 4 formula, all other jurisdictions inside them, no matter how small, were covered as well (although they could bail out separately, see NAMUDNO).  Under Section 3(c), there seems to be some uncertainty as to whether other jurisdictions within a bailed-in jurisdiction will also be bailed in.  

Under current law, is this simply a question within the discretion of the court making the 3(c) determination, like other questions of scope?  (So it seems to me, but I'm interested in others' views.)  Assuming that's the case, one item on my list of priorities for a revised Section 3(c) would be a clear rule that jurisdictions geographically included within a larger bailed-in jurisdiction are, by default, also bailed in.  

It seems to me that such a rule could not possibly offend the "equal sovereignty" of the states.

J

Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu


On Jul 29, 2013, at 12:07 PM, Michael P McDonald wrote:

> There has been elevated interest with Section 3 with the flurry of reporting around DOJ's filing requesting Texas be covered under Section 3 bail-in provisions. While some have expressed that this means Congress is less likely to act on revising the Section 4 coverage formula, I'm wondering if this means there might be greater interest in revising Section 3(c) bail-in. 
> 
> So what might be revised in Section 3?
> 
> 1. Section 3 is different from Section 5 preclearance in that the implementing court retains jurisdiction over the preclearance-like provisions. Indeed, as I read it -- and I'd welcome reactions from those more intimate with the details -- even though DOJ reviews election changes, the court still retains final approval. The proviso statement seems to indicate that the court might only act in the case where DOJ approves a change. Does that mean court proceedings may then initiated, whereby intervenors can enter? Consider this example, not all that implausible given how events unfolded in Texas's Section 5 experience: Texas is covered under Section 3, Texas submits a redistricting plan to DOJ, DOJ approves, but the court does not agree with the DOJ assessment. What happens next? Does the court begin a hearing on the plan?
> 
> If I am correct in the Section 3 review procedure, it provides stronger review than Section 5 since a jurisdiction must always jump two hurdles, DOJ and the court, where Section 5 only requires one hurdle, DOJ or the court. Section 3 might be amended to be more consonant with the Section 5 language, where a jurisdiction has the option of submitting an election change to DOJ or the District Court of DC (or, perhaps, the original court ordering bail-in).
> 
> 2. The scope of the election changes are at the discretion of the court. A revised Sec 3 might better define the scope. When combined with revised preclearance procedures in (1), perhaps all election changes could be covered, similar to Section 5. I could envision a bipartisan deal being struck here since revising the procedure might weaken Section 3, with revising the scope would strengthen it.
> 
> 3. The duration of bail-in coverage is indeterminate, at the discretion of the court. Theoretically, a jurisdiction might find itself covered forever. A revised Section 3 might better articulate the conditions and procedures for bail-out under Section 3.
> 
> Again, I'd welcome thoughts from those on the list who have firsthand knowledge on how Section 3 works.
> 
> ============
> Dr. Michael P. McDonald
> Associate Professor
> George Mason University
> 4400 University Drive - 3F4
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> 
> phone:   703-993-4191 (office)
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