In my post on the Texas redistricting cases earlier this week, I highlighted one reason why Judge Jones’ analysis of the section 3 issue is dangerous: it takes any teeth out of plaintiffs’ abilities to confront intentional discrimination when a jurisdiction can reap the benefits of the discriminatory law while fighting and delaying resolution. Under Judge Jones’ structure, there’s little incentive not to discriminate, as long as the officials implementing the law calculate that they’ll be marginally better off in the interim between passage of the law and the imposition of an eventual remedy. And under this structure, section 3 becomes completely impotent. We’re back to whac-a-mole.
Particularly in light of the 5th Circuit’s decision, it seems like an opportune time to plug Josh Douglas’s and Michael Solimine’s excellent (and now exceedingly timely) article on three-judge courts’ interaction with circuit decisions. Depending on what happens at SCOTUS with the Texas redistricting case argued earlier this week, the three-judge Texas redistricting court may well find that it is asked to confront Judge Jones’ opinion about the impact of a later-enacted law. And then the three-judge court is going to have to decide exactly how much attention to pay to that 5th Circuit opinion, which is exactly the issue that Josh and Michael lay out in interesting detail.