Justice Department to push for Section 3 in Texas

Bring it.

Attorney General Eric H. Holder Jr. announced on Thursday that the Justice Department would ask a court to require Texas to get permission from the federal government before making voting changes in that state for the next decade. The move opens a new chapter in the political struggle over election rules after the Supreme Court struck down a portion of the Voting Rights Act last month.

In a speech before the National Urban League in Philadelphia, Mr. Holder also indicated that the court motion — expected to be filed later on Thursday — is most likely just an opening salvo in a new Obama administration strategy to try to reimpose “preclearance” requirements in parts of the country that have a history of discriminating against minority voters.

His statements come as states across the South, from Texas to North Carolina, have been rushing to enforce or enact new restrictions on voting eligibility after the Supreme Court’s ruling in the Shelby County v. Holder case, which removed that safeguard.

“This is the department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Mr. Holder said. “Even as Congress considers updates to the Voting Rights Act in light of the court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to preclearance as necessary. My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”


In his speech, Mr. Holder said that evidence submitted to a court last year that the Texas Legislature had intentionally discriminated against Hispanics when redrawing district lines was sufficient to reimpose on that state the “preclearance” safeguard for a decade, noting that the court — in blocking the map — had said the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.”

Mr. Holder said: “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 department may also soon bring similar legal action against Texas over its voter identification law, which was also blocked by a federal court last year. Hours after the Supreme Court’s ruling in the Shelby County case, the state said it would begin enforcing the law.

Richard L. Hasen, a University of California at Irvine professor who specializes in election law, said that the move was a “huge deal showing that the department is going to be aggressive in seeking to resurrect what it can of the old preclearance regime,” but he also said the so-called “bail-in” process of Section 3 alone could not restore the previous sweep of the preclearance regime because the Justice Department “can only go after those jurisdictions found to be recently discriminating intentionally in voting on the basis of race.”

Still, he said, “getting the State of Texas covered again would be important not just symbolically but practically, as it would put its tough new voter ID law back on hold.”

That would indeed be a big deal. I presume the filing in question has to do with the ongoing redistricting litigation in San Antonio, and indeed it is.

In the filing, the Justice Department argues that “Section 3(c) relief is warranted in this case because existing evidence establishes intentional voting discrimination and other proceedings provide overwhelming evidence of constitutional violations in and by the State.”

The pleading asks the San Antonio court to “impose Section 3(c) coverage on the State of Texas as to all voting changes for a ten-year period following entry of a coverage order” with the option to extend coverage beyond ten years “in the event of further discriminatory acts.” If granted as requested by DOJ, the order would cover “any voting qualification or voting-related standard, practice, or procedure that the State enacts or seeks to administer that differs ‘from that in force or effect’” on May 9, 2011 (including Texas’ voter ID law).

Read the whole thing. The plaintiffs there had already filed Section 3 motions, and it was not clear at the time if the Justice Department would be joining them. Now we know, and it’s good to see that they are backing them up. Texas Redistricting outlines the plaintiffs’ briefs and legal theories, and previews the state’s likely response. Note that the voter ID litigation would also be affected by the Justice motion; according to TPM, it appears they will file another motion for that case as well. Whatever the San Antonio court rules, I am certain that this will be back before SCOTUS before you know it. Texas Redistricting has statements from Sen. Rodney Ellis, Greg Abbott, Rick Perry, Rep. Trey Martinez-Fischer, and various others, as well as Holder’s full remarks. The Trib, SCOTUSBlog, and BOR have more.

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