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Will Texas' History Of Intentional Race Discrimination Come Back To Haunt It?

Abbott-running-right--2
AP Photo / Eric Gay

Section 3 of the Voting Rights Act lets courts add a state or local government to the preclearance requirement if it is found to have enacted intentionally discriminatory voting measures. The Supreme Court left that part of the Voting Rights Act intact; it invalidated Section 4, which includes the formula that Congress established to determine which state and local governments are to face that extra scrutiny automatically.

"Commonly called the bail-in mechanism or the pocket trigger, section 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance," explained a 2010 article in the Yale Law Journal. Judges have discretion to decide which jurisdictions are covered and for what period of time.

Civil rights groups last week filed a lawsuit invoking Section 3 to urge a D.C. court to place Texas back on the preclearance list. Their task is to persuade a federal court that Texas is seeking to discriminate against certain ethnic groups at the ballot box. Their rationale is that the state's proposed 2011 redistricting map was found by a federal court to be deliberately discriminatory and was blocked under the now-invalidated part of the Voting Rights Act.

In 2011, a three-judge panel in D.C. said Texas's redistricting plan was drawn with "discriminatory purposes." They concluded it removed the "economic guts" from African-American districts but performed "no such surgery" on districts represented by white incumbents.

Meanwhile, a separate court battle over the state's new 2013 redistricting map is already playing out in San Antonio, and the Supreme Court's ruling raises the stakes. If the court finds that the new map is intentionally discriminatory, it will give ammunition to the plaintiffs in the D.C. court case, which include the NAACP, League of United Latin American Citizens, Texas Legislative Black Caucus and Democratic state Sen. Wendy Davis.

In June Texas Attorney General Greg Abbott (R), pictured above, hailed the Supreme Court's decision and declared that the new 2013 map was immediately in effect. "These maps will not need to go through the lengthy and costly federal preclearance process," Abbott said. Lawyers for the state of Texas are now asking that the cases challenging its voting laws be dismissed.

"This is new territory, and African-American and Hispanic groups recognized as much when they told the D.C. court in their pleadings that it was 'being asked to tread new ground,'" wrote Michael Li, a Dallas-based attorney who is covering the issue on his blog, txredistricting.org.

The case will be the first major test of how effective Section 3 of the VRA is at protecting the rights of minorities to vote after the Supreme Court invalidated Section 4.

Although the Obama administration criticized the Supreme Court's ruling on the Voting Rights Act, the Justice Department has not yet taken a position on the effort to once again subject Texas to preclearance under Section 3.

"In coming days, the two federal courts will be dealing with a welter of filings by lawyers on all sides of Texas's voting saga, with the very real prospect that -- sooner or later -- much if not all of the controversy will return to the Supreme Court for final resolution," wrote Lyle Denniston of SCOTUSblog.