Now that the U.S. Supreme Court has thrown out the enforcement section of the Voting Rights Act, Attorney General Eric Holder today announced the next phase in the Justice Department’s efforts to protect the voting rights of all Americans. Holder said the department would ask a court to require Texas to get permission from the federal government before making voting changes for the next decade.
It is a monumental move by the Justice Department, effectively laying out the strategy the federal government will use in the aftermath of the Supreme Court’s controversial decision last month.
Holder’s announcement came during a speech before the National Urban League in Philadelphia. He made clear that the court motion — expected to be filed later on Thursday — is just an opening salvo in a new Obama administration strategy to try to reimpose “preclearance” requirements in parts of the country that have a history of discriminating against minority voters.
According to reports, several Southern states, such as Texas and North Carolina, have hurriedly tried to impose new voting restrictions after the court’s 5-4 decision in Shelby v. Holder.
That decision struck down Section 4 of the Voting Rights Act, which determined which parts of the country must, as stipulated by Section 5 of the VRA, submit changes in their election laws for federal approval. The formula in Section 4 was based on local election laws and voter registration statistics from 1964.
“This is the department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Holder said. “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 subject states to preclearance as necessary. My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”
Richard H. Pildes, a New York University professor who specializes in election law issues, told the New York Times that the move was “a dramatically significant moment in the next phase of the Voting Rights Act’s development” after the Supreme Court’s ruling.
“If this strategy works it will become a way of partially updating the Voting Rights Act through the courts,” he said. “The Justice Department is trying to get the courts to step into the role the Justice Department played before the Shelby County decision. The Voting Rights Act has always permitted this, in some circumstances, but this strategy wasn’t used much. If this approach works, it will help update the Voting Rights Act even without congressional action.”
Because the court’s decision left in place Section 2 of the Voting Rights Act, which bars discriminatory voting practices everywhere, plaintiffs now have to prove that the changes being imposed by states are discriminatory—instead of the state having to prove to the federal government that the changes will not dilute minority voting power.
The decision also left in place Section 3, which says that areas found to have intentionally discriminated can be subjected to Section 5’s preclearance requirements.
Holder said evidence submitted to a court last year indicating that the Texas Legislature had intentionally discriminated against Hispanics when redrawing district lines was sufficient to reimpose the “preclearance” safeguard on that state for a decade.
He noted that the court — in blocking the map — had said the parties “provided more evidence of discriminatory intent than we have space, or need, to address here.”
“Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder — as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized — we believe that the state of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,” Holder said.
Richard L. Hasen, a University of California at Irvine professor who specializes in election law, told the Times that the move was a “huge deal showing that the department is going to be aggressive in seeking to resurrect what it can of the old preclearance regime.”
But the “bail-in” process of Section 3 alone could not restore the previous sweep of the preclearance regime, he said, because the Justice Department “can only go after those jurisdictions found to be recently discriminating intentionally in voting on the basis of race.”
Still, he said, “getting the state of Texas covered again would be important not just symbolically but practically, as it would put its tough new voter ID law back on hold.”
The U.S. Senate last week held a hearing to address the court’s challenge to create a new standard to protect against racially discriminatory voting practices. Though most congressional observers have serious doubts whether this fiercely partisan Congress could agree on legislation in an area as contentious and politically explosive as voting rights and racial discrimination, the Senate Judiciary Committee initiated the process of exploring what a new standard for discrimination would look like.
Holder urged Congress to reimpose the preclearance procedures, saying the Justice Department’s efforts “are no substitute for legislation that will fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve.”