[EL] Revising VRA Sec 3

[Michael P McDonald]

John,

I remain confused about the process under Section 3. The source for my confusion about the role of the court in the review process comes from differing language in Section 3 and Section 5 about the process.

Section 3 describes the court involvement in the review process with a "shall" clause:

"...the court, in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure..."

Later, Section 3 states language consistent with Section 5 regarding DOJ's role:

"Provided...the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission."

This is different from Section 5, which has a "may" clause:

"...such State or subdivision may institute an action in the United States District Court for the District of Columbia..."

I thus read the "shall" clause in Section 3 as the court as having a mandatory role in signing off on changes if DOJ approves (putting aside the circumstance where DOJ objects). But for Section 5, the jurisdiction has the choice of where to request review.

How am I reading this wrong?

Thanks!

-Mike

============
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: John Tanner [mailto:john.k.tanner at gmail.com] 
Sent: Monday, July 29, 2013 1:09 PM
To: Joey Fishkin
Cc: Michael P McDonald; law-election at UCI.edu
Subject: Re: [EL] Revising VRA Sec 3

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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