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Holder's Move Against Texas Could Send The Voting Rights Act Back To The Supreme Court

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AP Photo / Hans Pennink

In the near term, this provides a substantial boost to civil rights advocates in Texas. Using the same section of the Voting Rights Act that Holder announced he is proceeding under, they had already asked a federal court earlier this month to require Texas to get what is called "preclearance." But rather than proceeding under Section 4 of the act, which the Supreme Court struck down, the groups proceeded under the lesser-known Section 3, which lets courts "bail in" jurisdictions for preclearance if those jurisdictions have demonstrated an intent to marginalize certain racial or ethnic groups.

In Texas, statehouse Republicans passed a 2011 redistricting map for state legislative and congressional districts that a court later found intentionally discriminated against blacks and Latinos. The court threw out that map and drew its own for the 2012 elections. Texas Republicans this year passed a new map to replace the court-drawn one. That map would also have have to been reviewed by the Justice Department or the courts, until the Supreme Court decision in June cut Texas loose from such oversight. That dubious recent history is what civil rights advocates are staking their Section 3 claim on.

And now Holder has joined that fight, directing the Justice Department to join the already-pending lawsuit filed by civil rights groups.

"I think this is a big move by Holder. It shows that the DOJ is going to be aggressive in supporting minority voting rights," said Rick Hasen, an election law expert and professor at University of California, Irvine. "They're going to be filing papers to make the point aggressively to make the case that there should be 'bail in' [of jurisdictions that seek to enact discriminatory voting laws]. But whether it's going to make a difference in terms of protecting minority voting rights -- it's way too early to know."

Civil rights advocates caution that Section 3 is not an adequate substitute for the section that was overturned by the Supreme Court, because it requires proof that the law carried the intent -- not merely the effect -- of discrimination. And that's very difficult. But it's still a useful tool and they believe Texas' redistricting map in 2011 makes the state a good candidate.

The state of Texas has made clear it will fight the DOJ's efforts, and argues that both Section 3 and Section 5 are unconstitutional. That means they could appeal directly to the Supreme Court if civil rights advocates succeed at "bailing in" Texas. "It would go as a direct appeal to the Supreme Court," Hasen said. "And I think the Supreme Court would take the case."

If Texas wins the case, it's unclear if DOJ would appeal. But if it loses, it's all but certain Texas will appeal. In a statement Thursday, Gov. Rick Perry (R) slammed Holder's move as reflecting "utter contempt for our country's system of checks and balances" and said that an "end run around the Supreme Court undermines the will of the people of Texas."

The Justice Department sees this as the first step in their efforts to crack down on voter discrimination with the tools they still have under the Voting Rights Act. Officials are closely watching other state-level moves, such as the voter ID push in North Carolina. Part of the aim is to fire a warning shot to states and make clear that they'll face DOJ pushback if they seek to exploit the Supreme Court decision.

Matt Miller, a former Obama Justice Department spokesman, told the Washington Post the DOJ is likely to also file suit over Texas' voter ID law and may even sue North Carolina if it passes an expanded voter ID law.

If the Texas case does end up back before the Supreme Court for a more definitive ruling on sections 3 and 5, it's unclear how the justices will rule. While Justice Clarence Thomas made clear in this year's Voting Rights Act case that he wanted to go further and overturn preclearance entirely, the other four conservative justices did not take a position. One school of thought is Justice Anthony Kennedy would be the likely swing vote on whether the concept should be allowed to stand within the narrow parameters of Section 3.

"It could be that Justice Kennedy would be okay with bail-in," Hasen said. "It's hard to predict."

Justice Department Texas VRA Filing