[Image courtesy of jatheon]
Last month's Supreme Court decision in Shelby County v. Holder represented a dramatic change in the relationship between federal, state and local governments on election policy. In the wake of the decision, which effectively eliminated the requirement that some jurisdictions seek prior approval of election changes, many states (like Texas) that had been stymied in enforcing new requirements like voter ID have moved ahead quickly to put those new laws into place. With Congress deeply divided on the need to amend the Act, legislative action to reinstate preclearance is highly unlikely.
Yesterday, however, Attorney General Eric Holder indicated that the Department of Justice will use another section of the Act to attempt to require Texas and other states to resume preclearance of their election changes. The Washington Post has more:
In the next few weeks, Holder is expected to use Sections 2 and 3 of the Voting Rights Act to prevent states from implementing certain laws, including requirements to present particular types of identification to vote. As with Texas, the department also is expected to try to force certain states to get approval, or "pre-clearance," before they can change their election laws.
"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 the voting rights of all American citizens are protected," Holder said in a speech Thursday at the National Urban League conference in Philadelphia. "My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found."
Holder announced that the department will support a lawsuit in Texas that was brought by a coalition of Democratic legislators and civil rights groups against the state's redistricting plan. Holder is asking the court to require Texas to submit all voting law changes to the Justice Department for approval for a 10-year period because of its history of discrimination.
The department may also soon sue Texas over its voter-ID law, as well as North Carolina if that state passes a new measure.
Anyone interested in what this means from a legal standpoint is well-advised to check out the analysis by SCOTUSBlog's Lyle Denniston, who suggests that DOJ's action significantly increases the likelihood of another Supreme Court case on VRA - perhaps as soon as this Term:
Texas has already given a strong hint that, depending upon how Section 3 ["bail-in"] might be used against it, it could start a new constitutional challenge to preclearance under Section 5. In a brief filed in the San Antonio court on Monday, the state's lawyers noted that the Supreme Court in Shelby County had remarked that preclearance imposes special and very unusual burdens on only some of the states, and suggested that this may result in their being treated unequally. Texas's lawyers thus suggested that the special burdens of preclearance might be constitutionally vulnerable, unless the federal courts used the Section 3 "bail-in" provision only in very limited circumstances.
The other fascinating aspect of all of this, as I've already noted, is the need on both sides for reliance on better data about the effect of election changes, especially on protected minority voters. Such data - whether offered to prove or rebut allegations of discrimination - will now be more important than ever in determining if and how the Voting Rights Act will apply going forward.
The DOJ's decision to open a new front in the fight over the VRA is noteworthy. If nothing else, it indicates that the debate over the federal government's role in protecting voter rights is unlikely to subside anytime soon.