| Subject: Re: jurisdiction if VRA section 5 constitutionality is challenged |
| From: Rick Hasen |
| Date: 7/27/2006, 7:07 AM |
| To: Samuel Bagenstos |
| CC: election-law@majordomo.lls.edu, still@votelaw.com |
Re: jurisdiction if VRA section 5 constitutionality is challenged They could do that, but the Court doesn't have to exercise its original
jurisdiction even when it exists. See Texas v. Leavitt, this past Term.
Would the Court think that it was important to address this issue without any
lower court opinions on the matter? Would states want to go directly to the
Supreme Court, or would they want to try out their arguments (and possibly
rack up some wins) before lower courts? It's unclear.Aside from the Court's original jurisdiction, isn't Allen the key precedent
here? It's been a while since I was immersed in the nuances of Section 5
jurisdiction, but doesn't Allen suggest pretty strongly that any challenge to
the constitutionality of the Act has to be brought in the District Court for
D.C. pursuant to Section 14(b) of the Act? (I don't think the renewal alters
Section 14(b).) Cases brought "under" Section 5 and Section 203 must be
brought in 3-judge courts, but I don't know whether a challenge to
constitutionality counts as being brought "under" the statute. The issue
obviously wasn't presented in Allen, but you could see the arguments both
ways. At least when asserted by a state that has an unprecleared change, it
seems to me that there's a strong argument that a challenge to Section 5's
constitutionality is "under" that Section.And of course, a state could just implement an unprecleared change and wait to
be sued (which would be in a three-judge district court) and defend by
challenging the constitutionality.====================================
Samuel R. Bagenstos
Professor of Law
Washington University School of Law
One Brookings Drive
St. Louis, MO 63130
314-935-9097
Personal Web Page:
http://law.wustl.edu/Academics/Faculty/Bagenstos/index.html
Disability Law Blog: http://disabilitylaw.blogspot.com/>>> Edward Still 7/27/2006 7:09 AM >>>
Just off the top of my head: why couldn't a state file an original action in
the Supreme Court? As in, South Carolina v. Katzenbach.
At 11:27 PM 7/26/2006, Rick Hasen wrote:
If someone files a lawsuit challenging the constitutionality of the renewed
section 5 (or other provision, such as section 203), would the case 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 is a
choice of where to file, any thinking on where and when such a challenge would
be filed?
Edward Still
attorney and mediator
Suite 201
2112 11th Ave S.
Birmingham AL 35205
phone 205-320-2882
fax toll free 1-877-264-5513
still@votelaw.com
http://www.edwardstill.com
http://www.votelaw.com/blog
-- Rick Hasen William H. Hannon Distinguished Professor of Law Loyola Law School 919 Albany Street Los Angeles, CA 90015-1211 (213)736-1466 (213)380-3769 - fax rick.hasen@lls.edu http://www.lls.edu/academics/faculty/hasen.html http://electionlawblog.org