Texas, along with several other states, thought the Supreme Court’s ruling in Shelby County v. Holder had given it carte blanche to revamp its election laws and district maps. Previously, Section 4 of the Voting Rights Act had defined the state, along with much of the former Confederacy and scattered jurisdictions elsewhere, as a covered jurisdiction, meaning that it was required under Section 5 to have all changes in electoral laws and practices pre-cleared by the Justice Department or a three-judge District Court panel. But once the Court had deemed Section 4’s formula to be as passe as a Nehru jacket, and consigned that provision to constitutional oblivion, Texas rushed to re-enact a redistricting map and a stringent voter ID law, neither of which would have withstood Section 5 scrutiny. (Indeed, the redistricting map at issue had been held by a federal court to have been enacted with discriminatory intent, as opposed to being formally race-neutral but having disparate impacts on minority communities.)
It remains to be seen whether Congress will re-enact Section 4 with an updated coverage formula. Republicans lent substantial support to the 2006 renewal of the Voting Rights Act, but the current Republican congressional caucus has shown little hesitation to jettison many ideas it once championed. Even if Section 4 renewal stalls out–and why should it differ from every other piece of meaningful legislation to get sucked into the Bermuda Triangle that is modern Washington?–the Obama administration is not about to let hard-earned voting rights protections erode without a fight:
- It can display the inadequacy of existing Voting Rights Act provisions to address the kinds of measures being enacted in various states. While it’s fair to assume that the post-Shelby County regime offers less protection than did its predecessor, the case for strengthening the Act will be easier to make once there’s a concrete demonstration that Sections 2 and 3 don’t provide enough punch on their own.
- It can offer Congress a path forward, should Congress choose to move seriously on voting rights. A coverage formula based on recent violations, rather than decades-old turnout and registration data, should pass muster with the Supreme Court, which had telegraphed its concern about the coverage formula in its 2009 ruling in Northwest Austin Municipal Utility District Number One v. Holder. Such a new formula might also have advantages in getting through Congress; because it would apply nationally, Southern states would feel less singled out. Ari Melber has advocated a “Two Strikes and You’re In” policy along these lines, and his defense of it is well worth reading.)\
- Finally, the litigation can raise the salience of voting rights ahead of the 2014 midterm elections. To have any chance of success, Democrats need a midterm electorate that looks like the 2012 electorate, and not the older, whiter 2010 electorate. Getting minority and young voters to the polls in midterm years presents a real challenge for Democrats, but being able to trumpet claims of voter suppression might help them to meet that challenge.
Today, Dylan Matthews at the Washington Post illustrated the magnitude and consequences of chronic understaffing in the federal judiciary. The highlights (lowlights?):
- The total number of vacancies in lower federal courts grew by about 50 percent during Obama’s first term in office.
- Obama has nominated judges at a slower rate than his two most recent predecessors.
- The interval between nomination and floor vote has grown substantially for district court judges, but not for court of appeals judges, where we would expect the higher stakes to produce greater incentive for senators to obstruct.
Presidents often get credited and blamed for circumstances beyond their control, and so much of the critique of Obama’s presidency subscribes to what Brendan Nyhan memorably labeled the “Green Lantern Theory of the Presidency,” in which failure to achieve presidential policy goals is purely the product of insufficient presidential gumption. But even if multiple actors bear responsibility for insufficient progress on staffing the courts, Obama’s hesitance to place more nominees in the pipeline represents a glaring unforced error, to borrow Jonathan Bernstein‘s term. If vacancies remain because Republican senators won’t engage, as per longstanding custom, with the White House to aid in selecting district court nominees, as the Alliance for Justice claims, then the president should nominate unilaterally and let the chips fall where they may.