Update: (6:43 p.m.) U.S. Attorney General Eric Holder’s speech Thursday mark the beginning of a new fight over the Voting Rights Act.
“It’s clear that Texas is the big test case for what may be a potentially broader effort to use the bail in mechanism to patch some of the damage caused by Supreme Court in Shelby v Holder into our voting rights regime," UT Law Professor Joseph Fishkin says.
Last month, the Supreme Court ruled Section 4 of the Voting Rights Act unconstitutional. It’s the formula that determines which states need federal approval to change their voting laws or practices. Without the formula, there are no guidelines to determine which jurisdictions need their voting laws and practices pre-approved. Now the federal government is arguing Texas requires pre approval under another provision—section three.
“The provision is when you have a persistent pattern of violations of voting rights or 14th or 15th Amendments a judge can order a jurisdiction to start having to submit their voting changes for pre-clearance," Fishkin says.
At his speech this week for the national meeting of the Urban League in Philadelphia, Holder said there’s a history of discrimination in Texas.
“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 pre-clearance process whenever it changes its voting laws and practices," Holder said.
Two more recent issues are the new Texas voter ID law and legal battles over redistricting. The Department of Justice had blocked the voter ID law, saying it discriminated against minorities. Texas reinstated it after last month’s decision by the U.S. Supreme Court.
As for redistricting, maps drawn by Texas lawmakers in 2011 were thrown out by a Federal Court in San Antonio, which then drew new voting maps ahead of the 2012 elections.
This year, Texas lawmakers voted to approve essentially those same court-drawn maps.
"You’ve all heard a straw man argument. This is a dead law argument. The maps we currently have are based upon maps drawn by three federal judges and free from discriminatory intent or purposes," Abbott said yesterday on a conference call.
Regardless of the arguments for or against pre-clearance, UT Law Professor Joseph Fishkin says this case is uncharted territory for lawyers on both sides. As it moves forward, a question will be whether the “bail in provision” is strong enough to be what allows pre-clearance to continue.
“This is almost a blue sky. We have very limited precedents that aren’t exactly on point. It’s really going to be up to court in San Antonio and then the inevitable appeals up from there to figure out whether this bail-in provision can be the backbone of new preclearance regime or not," Fishkin says.
If the Justice Department is successful, Texas will once again be required to get federal approval of any changes to voting practices for the next decade.
Update: (10:00 a.m.) Texas lawmakers are reacting to US Attorney General Eric Holder's plans to request the Department of Justice require Texas to get any changes to its voting laws or practices approved by the federal government.
Governor Rick Perry said the move "undermines the will of the people of Texas:"
“Once again, the Obama Administration is demonstrating utter contempt for our country's system of checks and balances, not to mention the U.S. Constitution. This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state's common-sense efforts to preserve the integrity of our elections process."
U.S. Senator John Cornyn agrees.
“By first going around the voters and now the Supreme Court, Attorney General Holder and President Obama’s intentions are readily transparent. This decision has nothing to do with protecting voting rights and everything to do with advancing a partisan political agenda," he said in a statement.
But Senator Rodney Ellis (D-Houston) applauded the decision. “Anyone who thinks Texas doesn’t need continued oversight simply hasn’t been paying attention," he said in a statement.
Original Story: (9:17 a.m.) U.S. Attorney General Eric Holder says he still wants Texas to still get any changes to its voting laws and practices pre-approved by the federal government – even after the Supreme Court struck down part of the Voting Rights Act last month.
He spoke before the National Urban League in Philadelphia Thursday morning, saying that he plans to ask a federal court to require the state to get those changes pre-approved.
“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,” Holder said. He continued:
“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.”
The announcement comes after a recent Supreme Court decision essentially doing away with preclearance. As KUT News previously reported:
The court ruled Section 4 of the Voting Rights Act as unconstitutional — the section of the Voting Rights Act that requires nine states and some cities and counties to get approval to make changes to their election laws. It’s also known as ‘preclearance.’ Section Four is the formula that determines which states need that ‘preclearance.’ In the court’s opinion, that formula is outdated.