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Just when Texas thought it was out…

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:

The Obama administration on Thursday moved to protect minority voters after last month’s Supreme Court ruling striking down a central part of the Voting Rights Act of 1965, with the Justice Department asking a court to require Texas to get permission from the federal government before making changes.
In a speech before the National Urban League in Philadelphia, Attorney General Eric H. Holder Jr. said the request would be the first of several legal salvos from the administration in reaction to the Supreme Court’s decision. “My colleagues and I are determined to use every tool at our disposal,” he said, “to stand against such discrimination wherever it is found.”
The specific weapon being wielded by the Justice Department is Section 3, under which federal oversight can be imposed on jurisdictions that have been proven to have acted in discriminatory fashion. (Lyle Denniston offers an impressively detailed and readable account of the Justice Department’s move, and the historical context behind it, at SCOTUSBlog,) Neither Attorney General Eric Holder nor voting rights scholars believe that Section 3’s “bail-in” can substitute for the pre-Shelby County status quo, under which covered jurisdictions had to prove that their proposed changes were not enacted for illicit reasons. The Section 4/Section 5 combination could prevent electoral law changes from ever taking effect, while the Section 3/Section 5 combination comes into play only after these changes have taken effect and possibly caused some damage. And under Section 3 (and Section 2, which has nationwide effect and was untouched by the Shelby County litigation), the Justice Department must clear a high bar in showing that proposed changes were enacted for discriminatory purposes, as opposed to making covered jurisdictions show that they weren’t. But even if Justice can’t make Texas retract its electoral maps and voter ID law, it can still serve three valuable purposes through this litigation:
  1. 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.
  2. 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.)\
  3. 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. 



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