Crum: The Prospect of Bailing-in Texas: Recent Bail-in Litigation (2)

This is the second in a series of guest posts by Travis Crum:

In this series of posts, I’m addressing the statutory, constitutional, and strategic issues surrounding a potential bail-in of Texas. But before we dive into this ongoing redistricting litigation, I’ll begin by discussing recent bail-in cases that will influence how this litigation will proceed.

In the past few years, a wave of Section 3(c) bail-in suits have been filed across the country. So far, the municipalities of Evergreen, Alabama, and Pasadena, Texas, have been bailed-in, and other bail-in suits remain pending. But two circuit court decisions have stymied efforts to bail-in entire States.

In North Carolina State Conference of the NAACP v. McCrory, the Fourth Circuit invalidated North Carolina’s notorious post-Shelby County voter suppression law. Specifically, the Fourth Circuit found that the law had been adopted with a discriminatory purpose and, in so holding, avoided deciding whether the law had a discriminatory effect. Despite finding a constitutional violation, the Fourth Circuit relegated Section 3(c) to a single paragraph and declined to impose bail-in on the grounds that such remedies are “rarely used” and unnecessary in light of a permanent injunction.

The Fourth Circuit’s cursory rejection of bail-in is perhaps best viewed as a strategic decision to make the case less cert-worthy. After all, the Fourth Circuit had already avoided a contentious legal question—the appropriate standard under Section 2 for showing discriminatory effects in vote-denial litigation—by making an inherently fact-bound discriminatory-intent finding. In not granting bail-in, the Fourth Circuit took a significant legal issue of first impression off the table and reduced the stakes of the plaintiffs’ victory.

That said, the prospect of bail-in likely drove the plaintiffs to emphasize and build record evidence for their intentional-discrimination argument, as many plaintiffs in the pre-Shelby County era often relied solely—or primarily—on discriminatory-effects claims. In other words, even though North Carolina was not bailed-in, the request for Section 3(c) relief likely had a significant impact on the litigation.

And in Veasey v. Abbott, a split panel of the Fifth Circuit brought an ignominious end to the Texas voter ID litigation. Back in 2011, Texas enacted a voter ID law that imposed strict photo-ID requirements on casting an in-person ballot. In May 2017, after years of litigation and a district court finding that the law was enacted with discriminatory intent, Texas enacted a revised, less stringent voter ID law. The district court subsequently enjoined both voter ID laws and ordered a bail-in hearing.

In its April 2018 decision, the Fifth Circuit reversed the injunction and further held that Texas’s revised voter ID law meant that “there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c),” even though the district court had not yet made that determination. As Rick Hasen and Justin Levitt have pointed out, the Fifth Circuit’s reasoning is deeply flawed: even if Texas’s second voter ID law was not enacted with discriminatory intent, its original voter ID law had been found to be enacted with an unconstitutional purpose and that alone is sufficient for bail-in. The Fifth Circuit’s decision in Veasey elides this key distinction and encourages the very gamesmanship that preclearance was designed to combat.

As I’ll discuss in a subsequent post, Veasey casts a shadow over the prospect of bail-in in this litigation.

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