As the Department of Justice (DOJ) and other litigants begin to turn to Section 3 to seek to put specific jurisdictions under judicial preclearance based on recent judicial findings of intentional discrimination, it’s important to note that Section 3′s text appears to contemplate this only as a remedial tool in existing litigation. Because there are not that many active pieces of voting-rights litigation pending around the country, that would appear to limit the effective reach of Section 3 — even if DOJ and the private litigants succeed in having the courts bail-in Texas under Section 3. I noted these and other potential procedural obstacles to the use of Section 3 in my initial post.
However, it’s possible DOJ (and other litigants) could seek to have district courts re-open judgments in prior cases from the last decade or so. Rule 60(b) of the Rules of Civil Procedure gives district courts discretion to re-open judgments under certain conditions, including a “significant change in law” that occurs after the judgment. There is no question, of course, that Shelby County is a significant change of law. I assume DOJ (or others) would argue that at the prior time, DOJ had no reason to seek a remedy under Section 3 because the jurisdiction was already required to preclear its changes by virtue of Section 4 of the VRA. Now that the Court has held Section 4 unconstitutional, this change in law provides the justification for DOJ to come back into court and seek a remedial order under Section 3.
Where would this action potentially be available? First, in any areas (inside the South or outside) in which courts have found intentional discrimination in voting and more than one voting-rights violation. Second, I would assume those violations have to be relatively recent, whatever that might mean exactly; that is why I said “in the last decade or so” above.
I don’t know how successful this strategy would be (or whether DOJ or others even contemplate it at this point). One of the leading Supreme Court cases on point regarding the use of Rule 60(b)(5) to re-open judgments based on subsequent significant changes in law is Agostini v. Felton, 521 US 203 (1997). Here is a brief excerpt, with quotes and citations to other Supreme Court decisions, on some of the relevant issues:
In Rufo v. Inmates of Suffolk County Jail, supra,we held that it is appropriate to grant a Rule 60(b)(5) motion when the party seeking relief from an injunction or consent decree can show “a significant change either in factual conditions or in law.” A court may recognize subsequent changes in either statutory or decisional law. See Railway Employees v. Wright, 364 U. S. 642, 652-653 (1961) (consent decree should be vacated under Rule 60(b) in light of amendments to the Railway Labor Act); Rufo, supra, at 393 (vacating denial of Rule 60(b)(5) motion and remanding so District Court could consider whether consent decree should be modified in light of Bell v. Wolfish, 441 U. S. 520 (1979)); Pasadena City Bd. of Ed. v. Spangler, 427 U. S. 424, 437-438 (1976) (injunction should have been vacated in light of Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1 (1971)). A court errs when it refuses to modify an injunction or consent decree in light of such changes. See Wright, supra, at 647 (“[T]he court cannot be required to disregard significant changes in law or facts if it is satisfied that what it has been doing has been turned through changed circumstances into an instrument of wrong” (internal quotation marks omitted)).