[EL] Revising VRA Sec 3

[John Tanner]

Under current law a court can only affect the rights of those before it --
the specfic defendants in the lawsuit.  The thousands of counties, cities
and special purpose districts in Texas could not be required to comply with
the special provisions of Section 3(c) unless each was a defendant.  Same
with 3(a).

In the past, it usually has been  found sensible to limit the scope of
section 3(c) to a limited set of changes: in Garza, for exmaple, DOJ only
sought to review the next redistricting plan rather than all Los Angeles
County changes.  I speculate that there may have been concern that the
court and county would not go along with broader coverage, and that no one
wanted to deal with the thousands of poilling place changes etc. in Los
Angeles County.  Note that under Section 3(c), the state or county would
have the option of obtaining preclearance either from DOJ or from the local
district court that found the violation (not the DC court).  That changes a
lot of dynamics.  The record of enforcement of unprecreared Section 3
changes is really, really thin.


On Mon, Jul 29, 2013 at 12:32 PM, Joey Fishkin <joey.fishkin at gmail.com>wrote:

> 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
> > 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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>
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