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1 Robert Timothy Reagan, et al., Preclearance of a Gubernatorial Recall Election 1 (2018)

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CASE STUDIES IN EMERGENCY ELECTION LITIGATION


                              Preclearance
               of a  Gubernatorial Recall Election
               Salazar v. Monterey   County   (5:03-cv-3584)
               and  Oliverez  v. California  (5:03-cv-3658)
           (Jeremy   Fogel, N.D.  Cal.); Hernandez v. Merced
           County   (1:03-cv-6147)   and  Gallegos  v. California
             (1:03-cv-6157)   (Oliver  W.  Wanger,   E.D.  Cal.)
       When   the state set a special election on whether to recall the gover-
       nor, a ballot initiative was moved from a primary election to the
       earlier special election. Separate federal cases alleged that the recall
       and  the early ballot initiative could not be held because they had
       not been precleared pursuant to section 5 of the Voting Rights Act
       as required for four of California's counties. The state obtained pre-
       clearance just as a three-judge court met to review the case. The
       judge presiding over two similar cases in another of the state's dis-
       tricts allowed the court presiding over the cases filed earlier to de-
       cide the issues.
           Subject: Recall elections. Topics: Section 5 preclearance; three-
       judge court; enjoining elections; news media; ballot measure.
Three voters in Monterey  County,  California, filed a federal complaint in the
Northern   District of California's San Jose courthouse  on August   1, 2003,
complaining  that it was invalid for the state to move a ballot initiative from a
March   2, 2004, primary election to a special October  7, 2003, election be-
cause the change had  not been precleared pursuant to section 5 of the Voting
Rights Act, as required for elections in Monterey County.'  With  their com-
plaint, the plaintiffs filed a motion for a temporary restraining order and a
preliminary injunction2 and  a request for a three-judge court.' The court as-
signed the case to a magistrate judge.  Three  days later, in response to the
plaintiffs' declination to proceed before a magistrate judge,' the court  as-
signed the case to District Judge Jeremy Fogel.6

   1. Complaint, Salazar v. Monterey County, No. 5:03-cv-3584 (N.D. Cal. Aug. 1, 2003),
D.E. 1; see Voting Rights Act of 1965, Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as
amended, 52 U.S.C. § 10304 (2015) (requiring preclearance of changes to voting procedures
in jurisdictions with a certified history of discrimination and requiring that preclearance dis-
putes be heard by a three-judge court).
   On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the
Court did hold unconstitutional the criteria for which jurisdictions require section 5 pre-
clearance. Shelby County v. Holder, 570 U.S. 529 (2013).
   2. Motion, Salazar, No. 5:03-cv-3584 (N.D. Cal. Aug. 1, 2003), D.E. 3.
   3. Request, id. (Aug. 1, 2003), D.E. 6.
   4. Scheduling Order, id. (Aug. 1, 2003), D.E. 2.
   5. Declination, id. (Aug. 4, 2003), D.E. 7.
   6. Reassignment Order, id. (Aug. 4, 2003), D.E. 9.
   Tim Reagan interviewed Judge Fogel for this report at the Federal Judicial Center on
August 2, 2012. Judge Fogel has been the Center's director from October 3, 2011, through


Federal Judicial Center 7/31/2018


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