Aside from Rick's procedural point, why should it matter whether the new law has gone into effect? The challenge presumably would be to the preclearance requirement as a whole. I don't suppose anybody claims that the incremental changes to the VRA (overruling Georgia v. Aschcroft and Bossier II) are unconstitutional in isolation or that they make more than a trivial difference with respect to the constitutionality of preclearance under contemporary circumstances. What makes a challenge plausible is the fact that the requirement has been renewed for 25 additional years. (By saying it is plausible I am not opining on the merits, only pointing to the obvious fact that a constitutional challenge is more likely and more likely to be taken seriously now than it would have been two years ago.) I can't see why it matters which version of the law is in effect.
Best,
Daniel Lowenstein
UCLA Law School
405 Hilgard
Los Angeles, California 90095-1476
310-825-5148
________________________________
From: owner-election-law_gl@majordomo.lls.edu on behalf of Rick Hasen
Sent: Thu 7/27/2006 9:50 AM
To: Brian Landsberg
Cc: election-law@majordomo.lls.edu
Subject: Re: jurisdiction if VRA section 5 constitutionality is challenged
I think it is fairly common to seek a declaratory judgment that a new law is unconstitutional before its effective date. I don't see how the fact that this law is a renewal changes the ripeness question.
Brian Landsberg wrote:
Why would such a suit be ripe? Section Five is not amended at all. The
main operative amendment is the extension for 25 more years, but
extension is not needed until next year. So if DOJ were, for example,
to object to a change tomorrow, even if the new Act were
unconstitutional, the objection could stand under the Act's
pre-amendment provision.
Rick Hasen <Rick.Hasen@lls.edu> <mailto:Rick.Hasen@lls.edu> 7/27/2006 9:36:38 AM >>>
I would think that it would be possible to at least bring a declaratory
judgment now, seeking to enjoin enforcement of the law as amended.
Brian Landsberg wrote: The responses to your questions have addressed
the where but not thewhen question. Since the Act, before being
amended, did not sunsetuntil next year, wouldn't challenges have to wait
until that sun hasset? Rick Hasen <rick.hasen@lls.edu> <mailto:rick.hasen@lls.edu> 7/26/2006
9:27:45 PM >>> If someone files a lawsuit challenging the
constitutionality of the renewed section 5 (or other provision, such as
section 203), would thecase be filed before a three-judge court? Or
would it go through a normal district court- court of appeal-cert to
Supreme Court process? Is there anything in the Act that speaks to
jurisdiction? If there isa choice of where to file, any thinking on
where and when such achallenge would be filed?
-- Rick HasenWilliam H. Hannon Distinguished Professor of LawLoyola Law
School919 Albany StreetLos Angeles, CA
90015-1211(213)736-1466(213)380-3769 -
faxrick.hasen@lls.eduhttp://www.lls.edu/academics/faculty/hasen.htmlhttp://electionlawblog.org