[EL] Revising VRA Sec 3

Mon Jul 29 16:12:18 PDT 2013

Nope.  As John pointed out, the /Jeffers/ court had two different 
remedial provisions for two different types of laws.

One concerned local majority-vote (rather than plurality) requirements: 
"any further statutes, ordinances, regulations, practices, or standards 
imposing or relating to a majority-vote requirement in general elections 
in this State must be subjected to the preclearance process." 740 
F.Supp. at 601.  This was the piece under the bail-in statute.  The 
preclearance process of section 3(c) let either DOJ or the Arkansas 
federal court sign off on changes. /Id. /at 599-600 (either DOJ or the 
court).

The other remedial provision had to do with statewide redistricting, 
setting a 60-day pause period after the 1990 statewide apportionment, 
for litigants to challenge the statewide map in the local federal 
court.  The court imposed that remedy, quite explicitly, "_not_ as a 
matter of statute, but as a matter of inherent equitable power." Id. at 
602.  As Sam said, whether that exercise of power by the court was 
appropriate is an interesting question.  But it wasn't under the bail-in 
statute. But when -- in Nick's words -- the court "designated itself as 
the only appropriate forum" for reviewing the next redistricting, it 
explicitly did not do so under section 3(c) bail-in.

Justin

On 7/29/2013 3:52 PM, Michael P McDonald wrote:
> Consistent of my reading of Section 3 procedure that the court is the ultimate authority, the Jeffers court retained itself as sole authority to adjudicate election changes under bail-in. I'd like to hear those who think otherwise how this squares with Section 5 procedures where jurisdictions have a choice to go to the DC court or DOJ.
>
> ============
> Dr. Michael P. McDonald
> Associate Professor
> George Mason University
> 4400 University Drive - 3F4
> Fairfax, VA 22030-4444
>
> phone:   703-993-4191 (office)
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>
> From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Samuel Bagenstos
> Sent: Monday, July 29, 2013 4:48 PM
> To: Nicholas Stephanopoulos
> Cc: Scarberry, Mark; law-election at department-lists.uci.edu
> Subject: Re: [EL] Revising VRA Sec 3
>
> Justin is Right in his reading of the text -- under SectIon 3 administrative preclearance is an alternative to judicial preclearance, just as under Section 5.  Nick's question is an interesting one. Formally, it would seem to depend on (1) whether courts had a pre-existing equitable power to make preclearance a remedy for a proven violation in appropriate cases (I would think yes); and (2) if so, whether Section 3 is best read as constraining that power for the benefit of states (maybe).
> On Jul 29, 2013 4:30 PM, "Nicholas Stephanopoulos" <nicholas.stephanopoulos at gmail.com> wrote:
> The experiences of the two states (Arkansas and New Mexico) that have been bailed in under Section 3 confirm that preclearance under the provision can take place through either the local federal court or the DOJ. In Arkansas it was the court itself
>   that precleared the state's 1990s legislative maps after bailing in the state in the 1980s. See Jeffers v. Tucker, 847 F. Supp. 655 (E.D. Ark. 1994). In New Mexico, on the other hand, it was the DOJ that precleared the state's 1990s legislative maps (after first objecting to the state senate plan). What's unclear to me is whether a court can deem itself the only permissible channel for preclearance. The statutory language would seem to say no, but the Jeffers court apparently designated itself as the only appropriate forum. See id. at 657 ("[W]e retained jurisdiction over the case to enable the plaintiffs to lodge objections concerning modifications made following the 1990 census.").
>
> On Mon, Jul 29, 2013 at 3:24 PM, Rick Hasen <rhasen at law.uci.edu> wrote:
> I agree with Mark. The language says: " in addition to such relief as it may grant, shall retain jurisdiction for such period as it may deem appropriate"
>
> An appropriate period could be for no time at all in the discretion of the court.
>
> (This is analogous to the requirement to post an injunction bond under FRCP 65 (c)  ("Th e court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.")  Courts have construed the "amount that the court considers proper" to include a bond in the amount of Zero, or no bond.
>
> Rick
>
>
> On 7/29/13 12:58 PM, Scarberry, Mark wrote:
> I wouldn't equate the requirement that the violation of the 14th or 15th justify equitable relief with the question whether the court should order bail-in. They seem separate. There must be a violation that justifies equitable relief to remedy the violation (an injunction) and then the court separately considers whether to order bail-in. At least that seems to be natural reading of the statutory language.
>
> Mark Scarberry
>
>
> Sent from my Verizon Wireless 4G LTE Smartphone
>
>
>
> -------- Original message --------
> From: Justin Levitt <levittj at lls.edu>
> Date: 07/29/2013 12:09 PM (GMT-08:00)
> To: law-election at department-lists.uci.edu
> Subject: Re: [EL] Revising VRA Sec 3
>
> For those looking, the full statutory text is here.
>
> Condensed, it says that if a court finds "that violations of the 14th or 15th amendment justifying equitable relief have occurred within the territory of [the jurisdiction in question,] 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 [new] voting [rule] shall be enforced unless and until the court finds that [it] does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or [language minority status]: Provided, That [the new rule] may be enforced if [it] has been submitted by the [jurisdiction] to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission[...]"
>
> So existing bail-in is predicated on a court finding that intentional discrimination justifying equitable relief have occurred -- that is, a court decision that bail-in is justified.
>
> And new rules can't be enforced without court sign-off, except that they can be enforced if they've been submitted to DOJ and precleared by DOJ.  This doesn't mean that the court has to review everything.  Look at the end of the sentence again: the new rule "may be enforced" if it has been submitted to the DOJ and the DOJ hasn't objected.
>
> The structure is the same as section 5, with the one exception that the role in section 5 played by the DC court is played by a local federal court instead.  If a bailed-in jurisdiction submits to DOJ and DOJ says OK, the new rule can go into effect.  If the bailed-in jurisdiction submits to the local federal court and the court says OK, the new rule can go into effect.  If the bailed-in jurisdiction submits to DOJ and DOJ objects, the jurisdiction may still seek review by the court -- and if the local federal court approves, the new rule can go into effect.
>
> Justin

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