But it would seem strange if, because the amendment to section 4
perhaps takes effect immediately, an application of section 5 which
would otherwise have been constitutional suddenly became
unconstitutional.
"David Epstein" <de11@columbia.edu> 7/27/2006 10:51:17 AM >>>
The fact that Section 5 would have expired next year is, it seems to
me,
irrelevant to the present situation. Now that the bill is signed into
law,
it *is* the law, superseding the previous version of the act which
would
have expired next year.
In fact, to be perfectly precise, the Act is now extended for 26
years,
since Section 5 will not expire until 2032. (This is explicitly stated
in
Section 7 of the renewal act.) That's 25 years *more* than it would
have
lasted otherwise but, of course, by renewing early proponents have
denied
the courts one year's extra data with which to judge the necessity of
renewing Section 5. (And with midterm elections happening in the
interim,
that's not a negligible difference.)
To put it another way, were Congress next year to decide to extend
Section 5
for *another* 25 years, to 2057, the courts would certainly count that
as a
50-year extension, not just 25.
In any case, I don't think there's a real question about the ripeness
of a
challenge to the act.
David Epstein
On 7/27/06, Brian Landsberg <blandsberg@pacific.edu> wrote:
The Declaratory Judgment Act does not negate the requirement that
the
litigant demonstrate injury. My question is what injury is inflicted
on
the state now; it is in precisely the same legal posture as it would
have been if the 2006 Amendments had not passed.
Rick Hasen <Rick.Hasen@lls.edu> 7/27/2006 9:50:06 AM >>>
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. Themain operative amendment is the extension for
25
more years, butextension is not needed until next year. So if DOJ
were,
for example,to object to a change tomorrow, even if the new Act
wereunconstitutional, the objection could stand under the
Act'spre-amendment provision. Rick Hasen <Rick.Hasen@lls.edu>
7/27/2006
9:36:38 AM >>> I would think that it would be possible to at
least bring a declaratoryjudgment now, seeking to enjoin enforcement
of
the law as amended.Brian Landsberg wrote: The responses to your
questions have addressedthe where but not thewhen question. Since
the
Act, before beingamended, did not sunsetuntil next year, wouldn't
challenges have to waituntil that sun hasset? Rick Hasen
<rick.hasen@lls.edu> 7/26/20069:27:45 PM >>> If someone files
a lawsuit challenging theconstitutionality of the renewed section 5
(or
other provision, such assection 203), would thecase be filed before
a
three-judge court? Orwould it go through a normal district court-
court
of appeal-cert toSupreme Court process? Is there anything in the Act
that speaks tojurisdiction? If there isa choice of where to file,
any
thinking onwhere and when such achallenge would be filed? -- Rick
HasenWilliam H. Hannon Distinguished Professor of LawLoyola
LawSchool919
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
-- 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
--
**************************************
David Epstein
Professor of Political Science
Columbia University
New York, NY 10027
212-854-7566
http://www.columbia.edu/~de11
**************************************