Texas is the first battleground in the new era of Voting Rights Act enforcement, as the Obama administration launched a case that could have ramifications for Georgia and other states newly freed from automatic federal “pre-clearance” of their voting laws.
Attorney General Eric Holder announced Thursday that the Department of Justice would push for Texas to be subject to pre-clearance under the little-used Section 3 of the Voting Rights Act, which allows courts to order federal oversight of any voting law changes in areas with a pattern of discrimination.
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The Supreme Court last month struck down the Voting Rights Act formula that put nine states — including Georgia — and parts of seven others under pre-clearance. A 5-4 majority concluded that the formula, which had not changed much since 1965, was unconstitutionally outdated, and the justices challenged Congress to write a new one.
Texas was the first state to move after the Supreme Court decision, planning to start enforcing a voter-ID law that had been held up in court.
“Texas looked like it wanted a fight on this issue, and it’s going to get one,” said Doug Chalmers, a Georgia attorney who helped Sandy Springs successfully remove itself from pre-clearance under the law’s “bailout” provision in 2010.
“It’s an important test case. You may see a much larger effort by the Justice Department to do this in a number of other jurisdictions that used to be covered by Section 4 (the pre-clearance formula) but no longer are. … It’s entirely possible we may see it in Georgia.”
Atlanta Democratic U.S. Rep. John Lewis, the civil rights movement veteran who has been a key figure behind a congressional effort to rewrite the pre-clearance formula, did not predict Georgia as the next target. He’s looking northward.
“Without Section 4 I think it’s so fitting and appropriate for the Department of Justice to take the action,” Lewis said. “And I wish they would take a serious look at what has happened in the state of North Carolina right now also.”
North Carolina’s Republican-dominated legislature has drawn scrutiny — and mass protests — for several initiatives, including a slew of new voting restrictions. Among the proposals have been a strict voter-ID law, cutting early voting, not allowing parents to claim college students as dependents if they vote where they go to school and other measures that opponents say could harm turnout among historically Democratic constituencies.
Discriminatory voting laws remain subject to lawsuits, but the high court ruling in effect got rid of pre-clearance. The Justice Department has seized upon the courts as a way to bring it back, at least in part and at least until Congress acts — which is no sure thing.
“This is the Department’s first action to protect voting rights following the Shelby County (Supreme Court) decision, but it will not be our last,” Holder told the National Urban League’s annual conference in Philadelphia.
“Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected. My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found.”
But the bar to prove a court should institute pre-clearance is high. Judges must find a pattern of intentional discrimination worthy of powerful federal intervention.
Hans von Spakovsky, a conservative Heritage Foundation scholar who testified in Congress last week against the need for any pre-clearance regime, said Holder faces a long shot in Texas. The DOJ would have an easier time going after counties or other small jurisdictions, he said.
“They might be able to do it on a small level if they can show a history and pattern of discriminatory treatment,” said von Spakovsky, the former chairman of the Fulton County GOP and George W. Bush administration DOJ official. “They’re going to have a much tougher time doing that with states.”
Texas Gov. Rick Perry vowed a vigorous fight. In a statement Thursday he said, “This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process.”
Advocates for stronger Voting Rights Act protections cheered Holder’s announcement.
“The fact that Texas has moved so quickly to implement election law changes that have been found discriminatory by federal courts flies in the face of democracy,” said NAACP senior director for voting rights Jotaka Eaddy. “The DOJ is using every tool within its power to protect voters in Texas.”
But Holder and his allies stressed their continued desire for congressional action. Initial hearings last week showed some bipartisan support for a new pre-clearance formula but also revealed persistent skepticism from conservative Republicans that any new law is needed, because discriminatory laws are still subject to Voting Rights Act lawsuits.
Congressional leaders have said they will draft a voting rights bill in August to introduce in the fall. One possible avenue of compromise could be to expand Section 3 so courts could force certain areas into pre-clearance without Congress having to designate them.
“I don’t want to get out front of what some of my colleagues of both sides of the aisle are talking about,” Lewis said, when asked about that prospect. “We’ve got to do it in a bipartisan fashion.”
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