The Obama administration, seeking to salvage significant power to stop racial discrimination in voting even after a major defeat in the Supreme Court, will be asking federal courts to put the state of Texas under a continuing duty to get official permission in Washington for any changes it wants to make in its election laws or methods. Attorney General Eric Holder disclosed that plan Thursday in a speech to the annual meeting of the Urban League, in Philadelphia.
Holder said the Justice Department will ask a federal district court in Texas to apply the “preclearance” requirement under the 1965 Voting Rights Act to Texas. That could only be done now, in the wake of the Supreme Court’s ruling last month in Shelby County v. Holder, by having a court apply the so-called “bail-in” provision of the 1965 law’s Section 3. That provision was left intact by the Supreme Court.
Here is the Holder statement on the Section 3 issue:
“Today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act. This request to ‘bail in’ the state – and require it to obtain ‘pre-approval’ from either the Department or a federal court before implementing future voting changes – is available under the Voting Rights Act when intentional voting discrimination is found. Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.”
A three-judge U.S. District Court in San Antonio is now considering the question of whether to put Texas back under the preclearance requirement in a pending case involving new election districts for the Texas state legislature and for its membership in the House of Representatives. Advocacy groups for minority voters in the state have already asked that court to take that step. Texas, however, has cautioned that court that such a step might raise new constitutional issues, unless the Section 3 provision is used only in quite narrow circumstances.
The advocacy groups have also asked a three-judge district court in Washington to take the same step. That is the court that found flaws in parts of the Texas redistricting maps in the case that the Attorney General mentioned — Texas v. Holder. The Supreme Court sent that case back to the district court to apply the Shelby County decision. The Justice Department is due to file on Friday its views on the Section 3 question in that case. Holder’s remarks presumably mean it will embrace a Section 3 approach in that case, too.
In addition, it appears likely that the Section 3 issue will arise in another voting rights case involving Texas. That case, also sent back to a three-judge district court by the Supreme Court to consider the impact of the Shelby County decision, involves the constitutionality of Texas’s controversial voter ID law. So far, there have been no follow-up filings in that case.
The advocacy groups that are pressing a preclearance requirement for Texas on voting have asked the two lower courts to impose that obligation for a period of at least ten years.
The preclearance provision is contained in Section 5 of the Voting Rights Act. It has been widely considered to be the government’s most effective legal weapon against race bias in elections, because it requires states and local governments with a past history of racial discimination in voting to get official permission in Washington before they may put into effect any change, however small, in voting laws or procedures.
The 1965 law provided two ways to impose a Section 5 obligation on a state or local government. One was a virtually automatic formula, contained in Section 4 of the law. If a state or local government had a sustained history of racial bias in its voting patterns in the past, that triggered a coverage formula that led directly to a Section 5 preclearance obligation. Preclearance can be sought either from the Justice Department or from a three-judge District Court in Washington.
The second way to get a state or local government put under a preclearance duty is the 1965 law’s Section 3 — the one that the Attorney General said the government will now be invoking. If a state or local government is found to have recently engaged in intentional race bias in voting, a court has the power to impose the preclearance duty on that jurisdiction for a set period of time. It is not an automatic method, in contrast to the coverage formula in Section 4.
While the Supreme Court in the Shelby County ruling did not disturb Section 5 and the preclearance requirement, it did strike down the Section 4 coverage formula. That has been the quickest and most effective way to lead to Section 5 preclearance. The Court’s majority ruled that the coverage formula was seriously out of date, and could no longer be used to trigger Section 5 for any state or local government anywhere in the country.
The Shelby County decision did not disturb Section 3 as a separate way to bring about a preclearance duty. That is why advocacy groups — and now the Obama administration — are turning to Section 3 as the next-best way to enforce the 1965 law through preclearance.
Texas has already given a strong hint that, depending upon how Section 3 might be used against it, it could start a new constitutional challenge to preclearance under Section 5. In a brief filed in the San Antonio court on Monday, the state’s lawyers noted that the Supreme Court in Shelby County had remarked that preclearance imposes special and very unusual burdens on only some of the states, and suggested that this may result in their being treated unequally. Texas’s lawyers thus suggested that the special burdens of preclearance might be constitutionally vulnerable, unless the federal courts used the Section 3 “bail-in” provision only in very limited circumstances. (That Texas brief and the advocacy groups’ briefs in the San Antonio court regarding Section 3 can be read here, courtesy of the Texas Redistricting blog. That blog also has a very useful discussion of what is in those briefs; it is here.)
Texas’s lawyers have been among those trying to persuade the federal courts that the Section 5 preclearance obligation is unconstitutional. That was a background issue in the Shelby County case, but the jurisdiction involved in that case — a county in Alabama — did not press that argument. The Court, in its decision, said it was issuing no ruling on Section 5’s validity.
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