Attorney General Eric Holder Opens New Front in Voting Rights Battle

eric holderWASHINGTON — 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. 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.  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 Shelby County v. Holder.

“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.”

The move relies on a part of the Voting Rights Act that the Supreme Court left untouched in the Shelby County case. The court struck down the coverage formula in Section 4 of the law, which had subjected Texas and eight other mostly Southern states to federal oversight based on 40-year-old data. The court suggested that Congress remained free to enact a new coverage formula based on contemporary data, but most analysts say that is unlikely.

Striking down the law’s coverage formula effectively guts Section 5 of the law, which requires permission from federal authorities before covered jurisdictions may change voting procedures.  The move by the Justice Department on Thursday relies on a different part of the law, Section 3, which allows the federal government to get to largely the same place by a different route, called “bail-in.” If the department can show that given jurisdictions have committed constitutional violations, federal courts may impose federal oversight on those places in piecemeal fashion.

State officials have celebrated the Shelby County ruling as lifting an obsolete relic of the civil rights era that unfairly treated their states differently from other parts of the country, while civil rights advocates have lamented it as removing a safeguard that is still necessary.  Lawyers for minority groups have already asked a court in Texas to return the state to federal oversight. The Justice Department’s action — filing a “statement of interest” in that case — will bring the weight of the federal government behind those efforts.

In a statement, Gov. Rick Perry cast Mr. Holder’s remarks as an attempt by the Obama administration to weaken what he called the state’s voter-integrity laws and said the comments demonstrated the administration’s “utter contempt for our country’s system of checks and balances.”

“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,” Mr. Perry said.

State Representative Trey Martinez Fischer, a San Antonio Democrat who is the chairman of the Mexican-American Legislative Caucus, said racial discrimination in Texas was not a thing of the past. “The fact that intervention in Texas is the Department of Justice’s first action to protect voting rights following the Shelby County decision speaks volumes about the seriousness of Texas’ actions,” Mr. Fischer said. “Texans should be proud that the resources of the federal government will be brought to bear to protect the voting rights of all.”

Richard H. Pildes, a New York University professor who specializes in election law issues, said the move was “a dramatically significant moment in the next phase of the Voting Rights Act’s development” after the Supreme Court’s ruling.  “If this strategy works it will become a way of partially updating the Voting Rights Act through the courts,” he said. “The Justice Department is trying to get the courts to step into the role the Justice Department played before the Shelby County decision. The Voting Rights Act has always permitted this, in some circumstances, but this strategy wasn’t used much. If this approach works, it will help update the Voting Rights Act even without Congressional action.”

According to a 2010 article in The Yale Law Journal by Travis Crum, then a law student at Yale, Section 3’s bail-in mechanism “has been applied sparingly” since the Voting Rights Act was enacted in 1965, with courts ordering coverage of Arkansas, New Mexico, six counties and one city. The orders sometimes applied only to particular kinds of voting procedures and set a sunset date for coverage.

The Shelby County decision, by a 5-to-4 vote that broke along ideological lines, also left in place Section 2 of the Voting Rights Act, which bars discriminatory voting practices everywhere — whether the bias is intentional or the changes merely have the effect of diluting the voting power of members of minority groups.

The difference is that Section 2 allows traditional after-the-fact challenges. Under that provision, states are free to impose changes in voting procedures, which plaintiffs may challenge in court, bearing the legal burden of proving that the changes are discriminatory and the financial burden of bringing the suit.

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, 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 professor at the University of California, Irvine, 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” adding that “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.”

But Professor Hasen added that trying to “bail in” jurisdictions under Section 3 was not a substitute for Section 5’s comprehensive oversight requirements for all of the areas it covered. “This is a clunky way to cover only a subset of jurisdictions found to be intentionally discriminating — a tough legal standard to prove,” he said. “And courts have discretion to grant or not grant bail-in, and to fashion the remedy as they see fit.”

While voting discrimination remains illegal, voting law experts say that in practice there will be far less scrutiny of thousands of decisions each year without the preclearance requirement. That will give the jurisdictions with a history of disenfranchising minority voters more leeway, they said, in redrawing district lines, moving or closing polling places, changing voting hours or imposing voter identification requirements.

Mr. Holder urged Congress to reimpose the preclearance procedures generally, saying the Justice Department’s efforts “are no substitute for legislation that will fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve.”

article via nytimes.com

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