[EL] (no subject)

[Pildes, Rick]

Yes, I know that’s true.  But I don’t know that the finding here was made under Section 5 or made under the Constitution or both.  That was part of my question – unless the finding is a result of the unique structure of Section 5, it would still be estoppel.

From: Samuel Bagenstos [mailto:sambagen at umich.edu]
Sent: Tuesday, June 25, 2013 11:00 PM
To: Pildes, Rick
Cc: law-election at UCI.edu
Subject: Re: [EL] (no subject)

Pretty sure a difference in the allocation of the burden of proof is a recognized exception to issue preclusion, alas.

Sent from my iPad

On Jun 25, 2013, at 10:51 PM, "Pildes, Rick" <pildesr at exchange.law.nyu.edu<mailto:pildesr at exchange.law.nyu.edu>> wrote:

A three-judge federal court has found already that Texas’ redistricting plan was motivated by a racially discriminatory purpose.  Whether that finding is right or wrong, I assume it is going to be collateral estoppel against the state in the immediate litigation that is going to ensue.  Unless that finding was affected by Section 5 – because it resulted from the shifted burden of proof under Section 5 – Texas’ only recourse if it wants to put into effect the rejected plan would be to appeal to the Supreme Court.  I haven’t reviewed the three-judge court opinion lately but I’d be interested to learn more about this issue from lawyers on the list who have.


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