Preclearance requirement sought for Texas on voting
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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