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H. Robin Samuelsen, Jr., Russell S. Nelson, Vicki Otte, and v. Mead Treadwell

June 15, 2012

H. ROBIN SAMUELSEN, JR., RUSSELL S. NELSON, VICKI OTTE, AND MARTIN B. MOORE, SR.,
PLAINTIFFS,
v.
MEAD TREADWELL, IN HIS OFFICIAL CAPACITY AS LIEUTENANT GOVERNOR FOR THE STATE OF ALASKA; AND GAIL FENUMIAI, IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DIVISION OF ELECTIONS FOR THE STATE OF ALASKA, DEFENDANTS.



The opinion of the court was delivered by: Sharon L. Gleason United States District Judge

ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING

ORDER

The plaintiffs initiated this action on June 7, 2012, seeking declaratory and injunctive relief to enforce Section 5 of the federal Voting Rights Act, which requires that certain voting changes be precleared by the Department of Justice.*fn1 Specifically, the plaintiffs seek to enjoin the implementation of the Amended Proclamation Plan that establishes new legislative districts in the State of Alaska for the upcoming elections.

On May 22, 2012, the Alaska Supreme Court issued an order directing that the Amended Proclamation Plan be used as the "Interim Plan" for the upcoming 2012 election cycle.*fn2 On May 25, 2012, the Alaska Redistricting Board submitted the Amended Proclamation Plan to the Department of Justice ("DOJ") for Section 5 preclearance.*fn3 The DOJ has up to 60 days thereafter within which to approve or disapprove the plan. On June 1, 2012, the candidacy filing period closed.*fn4 The primary election is currently scheduled for August 28, 2012.*fn5

On the same day that the Complaint in this action was filed, June 7, 2012, the plaintiffs filed a Motion for Temporary Restraining Order ("TRO"),*fn6 a Motion for Preliminary Injunction,*fn7 and a Motion to Convene Three-Judge District Court pursuant to 42 U.S.C. § 1973c(a) and 28 U.S.C. § 2284.*fn8 The defendants agreed that the applicable law directs the appointment of a three-judge court, and thus filed a joinder in the Motion to Convene.*fn9 This court granted that motion on June 11, 2012, and has requested that the Chief Circuit Judge appoint a three-judge panel for this case.*fn10

Until the three-judge panel is appointed, this court sits as a single-judge court, with the limited authority prescribed by 28 U.S.C. § 2284(b)(3):

A single judge may conduct all proceedings except the trial, and enter all orders permitted by the rules of civil procedure except as provided in this subsection. [Sh]e may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damage will result if the order is not granted, which order, unless previously revoked by the district judge, shall remain in force only until the hearing and determination by the district court of three judges of an application for a preliminary injunction. A single judge shall not appoint a master, or order a reference, or hear and determine any application for a preliminary or permanent injunction or motion to vacate such an injunction, or enter judgment on the merits. Any action of a single judge may be reviewed by the full court at any time before final judgment.

Thus, this single-judge court has authority to consider the plaintiffs' pending Motion for Temporary Restraining Order (TRO), and to enter a TRO if necessary to prevent "specified irreparable damage" until the three-judge court convenes to determine the plaintiffs' Motion for Preliminary Injunction. The Motion for a Temporary Restraining Order was fully briefed as of June 13, 2012. Oral argument was held before this court on June 14, 2012.

The parties agree that the Amended Proclamation Plan at issue in this case is within the scope of Section 5 of the Voting Rights Act ("VRA") and subject to its preclearance requirements.*fn11 And they agree that the plan has not received preclearance as of this time. Their present dispute is whether and to what extent this single-judge court should temporarily enjoin the Division of Elections from using the Amended Proclamation Plan for any action antecedent to an election until the Motion for Preliminary Injunction is determined by the three-judge panel.

What is the applicable standard for issuance of a Section 5 TRO?

The parties dispute the applicable legal standard for obtaining a temporary restraining order under U.S.C. § 2284(b)(3). The plaintiffs argue that any violation of Section 5 of the VRA "is presumed to be an irreparable injury."*fn12 Thus, the plaintiffs assert that once they "establish that there is a violation of Section 5, the irreparable injury requirement is met."*fn13 The defendants maintain that a "specific demonstration of irreparable injury by the party seeking relief is . an essential prerequisite"*fn14 to obtaining a Section 5 TRO.

While there is considerable case law with respect to the standard for the issuance of a preliminary injunction by a three-judge panel when a Section 5 preclearance violation has been alleged,*fn15 that issue is not before this court at this time. Rather, the current issue is the plaintiffs' request for a single judge to issue a short term temporary restraining order. As both the parties and the court noted at oral argument, the case law on this topic is minimal. Nonetheless, this court finds that the plain language of the applicable statute clearly delineates the standard for a party seeking a TRO from a single-judge court in a VRA proceeding. The statute specifically requires that a single judge "may grant a temporary restraining order on a specific finding, based on evidence submitted, that specified irreparable damage will result if the order is not granted."*fn16 Based on this language, this court rejects the plaintiffs' assertion that any implementation of a plan that has not been precleared automatically entitles a moving party to a TRO from a single-court judge. Instead, a showing of a specific and immediate injury must be made before emergency injunctive relief can be ordered by a single judge in a VRA Section 5 challenge. Such injury must be scheduled to occur prior to the three-judge panel convening. This approach is consistent with the statute's goal of providing that absent truly urgent circumstances, a three-judge panel, and not a single judge, is statutorily charged with the responsibility of making determinations in Section 5 VRA proceedings.

The plaintiffs cite extensively to Puerto Rican Legal Defense and Education Fund ("PRLDEF"), wherethe Eastern District of New York, sitting as a single-judge court, granted a TRO that enjoined the defendants from commencing a petitioning process for primary qualification based on a redistricting plan that was awaiting preclearance.*fn17

But the timelines in that case were significantly more compressed than those before this court. In PRLDEF, the new district lines had been drawn by June 7, 1991, and circulation of nominating petitions for party primaries was scheduled to begin on June 17, 1991.*fn18 A single-court judge issued the TRO order on June 12, 1991. Thus, it appears the single-judge court was faced with the impending primary qualification petitioning process prior to the convening of a three-judge court. Here, a comparable event-the candidacy filing deadline-had already passed on June 1, 2012, prior to the institution of this action. And the Affidavit of the Director of the Division of Elections, Gail Fenumiai, that was submitted in support of the defendants' ...

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