Why?  For the reasons I and Hans von Spakovsky wrote about yesterday. From the brief:

This Court may take notice of two additional matters. First, the Supreme Court has
granted a petition for writ of certiorari to this Court in Shelby County v. Holder, a case that
challenges the constitutionality of the 2006 reauthorization of Section 5. Shelby County v.
Holder, 2012 WL 3018430 (U.S. Nov. 9, 2012). Part of the defense of the constitutionality of
that statute is that the provisions permitting bail-in and bailout ensure that the statute remains
focused on the jurisdictions with the worst records, and that the bailout provision can be readily
used by covered jurisdictions with clean records. Shelby County v. Holder, 679 F.3d 848, 881-
82 (D.C. Cir. 2012), cert. granted, 2012 WL 3018430 (U.S. Nov. 9, 2012). Indeed, one of
plaintiff’s attorneys has cited this case and other bailout cases as an important reason why the
Supreme Court should uphold the constitutionality of Section 5. Gerry Hebert, The Shelby
County, Alabama Case and Bailouts (Nov. 15, 2012), available at www.clcblog.org. The
Attorney General thus has an incentive to interpret the bailout conditions very liberally, and his
effort to defend the constitutionality of Section 5 in Shelby County seems likely to influence his
determination of whether the bailout conditions have been met here.


Second, earlier this year, the Attorney General agreed to a consent decree permitting
bailout in which the covered jurisdiction admittedly had enforced changes in voting laws without
preclearance. Consent Judgment and Decree in Merced County v. Holder, D.D.C. No. 12-cv-
00354-TRH-DST-ABJ filed August 31, 2012 (Doc. No. 11) ¶ 29 (“Some recent submissions
were made after the Attorney General reviewed the records of the County and the political
subjurisdictions in the course of considering the County’s bailout request and advised that it
appeared that several potential voting changes had not previously been submitted to the Attorney
General over the preceding ten years.”). This only gives further support to the belief that the
Case 1:12-cv-01854-EGS-TBG-RMC Document 6 Filed 12/05/12 Page 10 of 12
1 Movant’s proposed motion to dismiss accompanies this motion as an exhibit. While a
motion to dismiss is technically not a “pleading,” courts have repeatedly interpreted the
“pleading” requirement of Rule 24(c) liberally so as to include a proposed motion to dismiss that
makes clear the proposed intervenor’s position. New Century Bank v. Open Solutions, Inc., 2011
WL 1666926, *3 (E.D. Pa. May 2, 2011) (citing authorities); Danner Constr. Co. v.
Hillsborough County, 2009 WL 2525486, *2 (M.D. Fla. Aug. 17, 2009) (ruling that a motion to
dismiss suffices under Rule 24(c), and rejecting an overly strict interpretation of that rule).
9
Attorney General, at least while Shelby County is before the Supreme Court, is not going to
argue that full adherence to the bailout conditions must be met before this Court may issue the
requested declaratory judgment.

Why?  For the reasons I and Hans von Spakovsky wrote about yesterday. From the brief:

This Court may take notice of two additional matters. First, the Supreme Court has
granted a petition for writ of certiorari to this Court in Shelby County v. Holder, a case that
challenges the constitutionality of the 2006 reauthorization of Section 5. Shelby County v.
Holder, 2012 WL 3018430 (U.S. Nov. 9, 2012). Part of the defense of the constitutionality of
that statute is that the provisions permitting bail-in and bailout ensure that the statute remains
focused on the jurisdictions with the worst records, and that the bailout provision can be readily
used by covered jurisdictions with clean records. Shelby County v. Holder, 679 F.3d 848, 881-
82 (D.C. Cir. 2012), cert. granted, 2012 WL 3018430 (U.S. Nov. 9, 2012). Indeed, one of
plaintiff’s attorneys has cited this case and other bailout cases as an important reason why the
Supreme Court should uphold the constitutionality of Section 5. Gerry Hebert, The Shelby
County, Alabama Case and Bailouts (Nov. 15, 2012), available at www.clcblog.org. The
Attorney General thus has an incentive to interpret the bailout conditions very liberally, and his
effort to defend the constitutionality of Section 5 in Shelby County seems likely to influence his
determination of whether the bailout conditions have been met here.


Second, earlier this year, the Attorney General agreed to a consent decree permitting
bailout in which the covered jurisdiction admittedly had enforced changes in voting laws without
preclearance. Consent Judgment and Decree in Merced County v. Holder, D.D.C. No. 12-cv-
00354-TRH-DST-ABJ filed August 31, 2012 (Doc. No. 11) ¶ 29 (“Some recent submissions
were made after the Attorney General reviewed the records of the County and the political
subjurisdictions in the course of considering the County’s bailout request and advised that it
appeared that several potential voting changes had not previously been submitted to the Attorney
General over the preceding ten years.”). This only gives further support to the belief that the
Case 1:12-cv-01854-EGS-TBG-RMC Document 6 Filed 12/05/12 Page 10 of 12
1 Movant’s proposed motion to dismiss accompanies this motion as an exhibit. While a
motion to dismiss is technically not a “pleading,” courts have repeatedly interpreted the
“pleading” requirement of Rule 24(c) liberally so as to include a proposed motion to dismiss that
makes clear the proposed intervenor’s position. New Century Bank v. Open Solutions, Inc., 2011
WL 1666926, *3 (E.D. Pa. May 2, 2011) (citing authorities); Danner Constr. Co. v.
Hillsborough County, 2009 WL 2525486, *2 (M.D. Fla. Aug. 17, 2009) (ruling that a motion to
dismiss suffices under Rule 24(c), and rejecting an overly strict interpretation of that rule).
9
Attorney General, at least while Shelby County is before the Supreme Court, is not going to
argue that full adherence to the bailout conditions must be met before this Court may issue the
requested declaratory judgment.