Obama’s Justice Department is fighting a recent Supreme Court decision—and picking a fight with Texas.
U.S. Attorney General Eric Holder announced that the Justice Department will ask a federal court to subject Texas to a pre-clearance requirement—something the Supreme Court just struck down—for all of its proposed changes to voting ordinances for the next 10 years. Texas Attorney General Gregg Abbott tweeted that he’ll “fight Obama’s effort to control our elections” and he’ll keep fighting “against cheating at the ballot box.”
Holder’s announcement follows his criticism of the U.S. Supreme Court’s decision in Shelby County v. Alabama, in which the Court struck down part of the Voting Rights Act, Section 5, which placed a small number of states such as Texas under special scrutiny. Section 5 was an extraordinary intrusion on state sovereignty, since it required Texas to get the approval of the Justice Department or a federal court in Washington before it could make any changes in its voting laws. The Supreme Court said the formula that determined which states were covered was unconstitutional because it was based on 40-year-old data—registration and turnout in the 1964, 1968, and 1972 elections.
Congress didn’t update the formula when it renewed Section 5 for another 25 years in 2006—if it had, neither Texas nor any of the other states would have remained covered. Times have changed, and the widespread, official discrimination that caused large disparities in black and white voter turnout have long since disappeared.
Holder is now going to sue Texas under Section 3 of the Voting Rights Act, which allows a court to order a jurisdiction to get all of its voting changes pre-approved before they can take effect. But the problem Holder faces is that he will have to prove that Texas has engaged in discriminatory conduct intended to violate the Fourteenth or Fifteenth Amendment rights of Texas voters. And he will have to convince the court that Texas has such a history and pattern of discriminatory conduct that it is likely to repeat this behavior in the future unless it is placed under federal supervision.
Holder may be planning to use Section 3 to go after all of the nine states that were covered by Section 5 before its coverage formula was struck down by the Supreme Court. But he may have a tough time, since the evidence is simply not there to show that any of those states are or have been intentionally (and repeatedly) discriminating in voting. Holder and his political allies believe that voter ID laws are evidence of discriminatory conduct, and his past behavior shows he wants to use the Voting Rights Act to stop such election integrity efforts. But most courts have found voter ID laws are not a violation of the Voting Rights Act, and the U.S. Supreme Court found that a voter ID requirement is constitutional. And Section 3 applies a constitutional standard.
One report described the reaction of Texas officials as “If it’s war you want, it’s war you’ve got.” Governor Rick Perry (R) accuses Holder of trying to do an “end-run around the Supreme Court,” showing his “utter contempt for our country’s system of checks and balances, not to mention the U.S. Constitution.”
This case against Texas is the first step in the Justice Department’s newest crusade to, as Holder says, “use every tool” at his disposal “to subject states to preclearance” despite the Supreme Court’s decision. This may be an ideologically driven lawsuit, and Holder may not have the evidence that convinces a court that Texas violated Section 3. But it does show that contrary to the claims of critics of the Shelby County decision, DOJ still has powerful tools under the Voting Rights Act to go after specific jurisdictions that discriminate, rather than using the outdated coverage of Section 5 that no longer reflected modern America.
