Fall 2004 Exam Key
Question 1
Warning: This exam key represents a typical checklist like those that I use when I grade answers. It does
not purport, nor should it be taken, to represent complete answers with thorough analysis and discussion.
You should read this key with an eye toward understanding the answers and methodology used to get there
but your actual examine answers should contain more discussion of difficult issues than shown on this key.
Also, if students came up with something I hadn’t thought of in the key but which was relevant, I gave
some credit for that.
11A immunity:
Young allows suits for injunctions against officers in official capacity – this is such a suit. Edelman
prohibits injunctions if grant retrospective relief (i.e. $). Although will cost $1 million to comply, the
potential order is simply trying to prevent future discrimination – ancillary costs under Jenkins
Preliminary Injunction
Ripeness: Is there a cognizable threat of harm? Yes, regulation is issued and Allen clearly going to apply
Irreparable injury? Yes, voting is fundamental constitutional right and won’t be able to protect if no
injunction since trial won’t be until after the election. Can’t compensate w/ $
Test:
Balance harms caused by issuance/non-issuance of injunction in light of likelihood of either side
prevailing on merits
Likelihood/Success: Precedents & legislative history a wash as support both sides.
Harm to P:
Represent voters who are going to be disenfranchised – very BIG harm. Voting
is fundamental to our system.
Harm to D:
Economics & Time - $ cost large (but compared to state budge?) & time cost
could be significant but Allen doesn’t claim can’t do it & besides he is the one
who delayed in order to avoid suit so shouldn’t weigh in his favor
Public Policy:
In favor of injunction – HAVA designed to enfranchise & better to let vote &
sort out later given importance of the right & past crises in faith of electoral
system. Courts must get involved because they are the only ones able to
protect civil rights
Against injunction – traditionally left to states, HAVA unclear & this is
consistent with past practice so let Allen decide. Besides this is essentially a
structural injunction trying to regulate political institution – should be very
reluctant to do this unless clearly a violation and this isn’t
Preserve SQ:
Could go either way. Past practice & existing reg suggest SQ is to implement
the directive. But HAVA existed prior to new reg and suggests should interpret
provisional ballot broadly
Laches Defense: Did P’s failure to assert right combined with passage of time prejudice D? Unlikely - D
waited 2 years to try to thwart P and P brought within a month.
Injunction Bond
Although FRCP 65 text looks like bond is mandatory, fed cts interpret it as giving them discretion.
Reasons to waive bond include: P indigent, public rights at issue, D’s potential loss is low
Here, public rights are clearly at issue & although P is not indigent as a public interest organization it likely
would struggle to put up a $1 million bond. D’s loss isn’t low but as the state it must expect that its actions
will be challenged and since waited so long & budget is large – doesn’t seem to hurt by this. Judge is
within discretion to waive bond here.