[EL] Revising VRA Sec 3

[Scarberry, Mark]

My only point - which was not very well stated and probably is not controversial - was that the statutory language seems to set two preconditions that must be satisfied before bail in will occur.

First, the court must find that that there has been a violation of the 14th or 15th amendments.

Second, the court must find that the violation justifies an equitable remedy, in the sense that an injunction is needed to remedy the specific violation.

Bail in is then an *additional* result of that finding; it is in addition to the equitable remedy that is justified by the violation. Bail in can't itself be the remedy that the court finds to be justifiable; if the statute were read that way, then an order of bail in would have the additional effect of causing bail in, which doesn't make sense.

At that point Rick's observation enters the picture. The finding of a violation for which some other equitable remedy is justifiable triggers bail in. The language "shall retain jurisdiction " seems mandatory. But the statute provides that the court "shall retain jurisdiction for such period as it may deem appropriate." During that period there is a preclearance requirement, but the period may be as short as the court "may deem appropriate." The court in its discretion may think that the period should be very short or that a period of zero days is appropriate. It isn't clear that it would make sense to say that the period has to be at least a day. I suppose the district court's determination of the appropriate length of the period would be subject to review for abuse of discretion, which is pretty deferential.

On the other hand, you could think that such a "zero day" approach does not give the statute its appropriate mandatory effect. Perhaps the "appropriate" period would have to be a period of time long enough for the jurisdiction to show that the jurisdiction has changed its ways, so that it no longer is going to engage in constitutional violations, and that it has in fact taken steps to try to ensure that its actions won't even have an unintentional negative effect on minority voting rights.

This interpretation of the statute would be particularly sensible if we read the "period" as not being a preset period that is determined at the time of bail in, but rather a "rolling" period that depends on the court's continuing evaluation of the way the jurisdiction is treating minorities. The court then could decide based on later events whether the appropriate period of time had passed.

Presented for your consideration...

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: John Tanner [mailto:john.k.tanner at gmail.com]
Sent: Monday, July 29, 2013 1:57 PM
To: Justin Levitt
Cc: Rick Hasen; Scarberry, Mark; law-election at department-lists.uci.edu
Subject: Re: [EL] Revising VRA Sec 3

As I recall, the Jeffers order limited section 3 coverage to majority vote requirements.  The order on redistricting was separate and, apparently, under the general authority of the court to do as it will

On Mon, Jul 29, 2013 at 4:35 PM, Justin Levitt <levittj at lls.edu<mailto:levittj at lls.edu>> wrote:
Sorry -- I didn't mean to imply differently.  Like any other form of equitable relief, the judge may (or may not) impose bail-in if he or she deems bail-in appropriate, on such equitable terms as he or she deems appropriate.  My point was that the first "shall" in the statutory standard isn't doing much work here -- bail-in is subject to a court finding that it's appropriate to order bail-in.

That "shall" also doesn't give the court statutory authority to override a DOJ decision to preclear, once bail-in is already set.  As the last sentence of section 3 indicates, the jurisdiction has the choice to submit to DOJ or to the local court.

Justin


On 7/29/2013 1:24 PM, Rick Hasen 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)  <http://www.law.cornell.edu/rules/frcp/rule_65> ("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><mailto:levittj at lls.edu>
Date: 07/29/2013 12:09 PM (GMT-08:00)
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: Re: [EL] Revising VRA Sec 3

For those looking, the full statutory text is here<http://www.law.cornell.edu/uscode/text/42/1973a#c>.

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

--

Justin Levitt

Associate Professor of Law

Loyola Law School | Los Angeles

919 Albany St.

Los Angeles, CA  90015

213-736-7417<tel:213-736-7417>

justin.levitt at lls.edu<mailto:justin.levitt at lls.edu>

ssrn.com/author=698321<http://ssrn.com/author=698321>
On 7/29/2013 11:29 AM, Michael P McDonald wrote:

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<mailto: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<mailto: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><mailto: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<mailto: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<mailto:mmcdon at gmu.edu>

web:     http://elections.gmu.edu

twitter: @ElectProject







_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election

_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election





_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election



_______________________________________________

Law-election mailing list

Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>

http://department-lists.uci.edu/mailman/listinfo/law-election



--

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<tel:949.824.3072> - office

949.824.0495<tel:949.824.0495> - fax

rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>

hhttp://www.law.uci.edu/faculty/full-time/hasen/<http://www.law.uci.edu/faculty/full-time/hasen/>

http://electionlawblog.org


_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20130729/8f5d91bd/attachment.html>