In June, the Court ruled 5-4 in Shelby County v. Holder to overturn Section 4, the formula Congress has used for decades to determine which jurisdictions with a history of discrimination would be subject to closer federal scrutiny. But it left standing Section 5, the broader concept of "preclearance" -- the requirement that those offending jurisdictions receive permission from the DOJ or a federal court before making any changes to their voting laws. Section 5 still has teeth because of Section 3, a seldom-used provision to add (or "bail in") jurisdictions where there has been recent intentional discrimination.
The Justice Department has joined a lawsuit filed by civil rights advocates in San Antonio, targeting Texas for "bail in" under Section 3. The lawsuit alleges that the state -- as recent as 2011 -- enacted redistricting maps that intentionally discriminated against blacks and Hispanics. The DOJ wants to make an example out of Texas and warn other states that it will use the tools it still has after Shelby County v. Holder to prevent states and localities from implementing racially biased voting laws.
Texas' brief is a full-frontal attack on the legality of preclearance as an "extreme sovereignty-infringing remedy." Preclearance is only justifiable, Texas asserts, where there is "rampant, widespread, recalcitrant discrimination akin to what originally justified the preclearance regime in 1965," an era when poll taxes and literacy tests were used. "Because nothing remotely like that has occurred in modern-day Texas, this Court cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies."
In actuality (and in a move that surprised many) the high court did not take a position on the concept of preclarance itself. But Texas' aggressive legal interpretation of the ruling, along with the DOJ's determination to use Section 3 against the Lone Star State, suggests that while Texas' primary objective may be to shut down the DOJ's effort via the lower courts, it is willing to push what's left of the Voting Rights Act to the Supreme Court for the justices to issue a definitive ruling on whether preclearance itself is constitutional.
"As the two sides have lined up on opposite interpretations of Section 3, there is now a very real prospect that the Supreme Court may one day have to clarify when a state may be required to get approval in Washington before it can put into effect any change in its election laws or methods," wrote Lyle Denniston of the well-respected SCOTUSblog.
And it's an open question whether the conservative-leaning court would preserve preclearance.
Hasen speculates on his blog that "the fact that the sky did not fall after Shelby County could lead Justice Kennedy and Chief Justice Roberts to feel comfortable going further -- maybe to get rid of preclearance all together. ... And once the Roberts Court feels its days are numbered, things may move more quickly."