The Washington Postreports that Eric Holder plans to file voting-rights challenges not only against Texas, which the DOJ did last week, but against a number of other states, too. These challenges are part of a crusade to, as Holder says, “use every tool” at the Obama administration’s disposal to continue federal oversight of the states in this area, despite the Supreme Court’s decision last month in Shelby County v. Holder.
In that case, the Court struck down the coverage formula used for Section 5 of the Voting Rights Act, which required some jurisdictions, including Texas, to “preclear” any changes to their voting policies — including redistricting and voter-ID laws, to give two high-visibility examples — with the federal government. 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. In fact, the Census Bureau reported that blacks voted at a higher rate than whites nationally by more than two percentage points. Black turnout is consistently higher in the formerly covered jurisdictions than in the rest of the nation.
We hope that Texas and the other states targeted by the DOJ will put up a vigorous defense. We have to admit, however, that in one sense we are happy to see Holder’s lawsuits, as opposed to a congressional effort to revive Section 5. In all likelihood, new voting-rights laws would either curtail perfectly reasonable election-integrity laws (such as those requiring voter identification) or facilitate racially gerrymandered and segregated districts (the principal use to which Section 5 has been put).
This lawsuit also shows that despite the demise of Section 5, there is no shortage of federal statutes — such as Section 3 of the VRA, which underpins Holder’s lawsuits — that can be used to combat racial discrimination in voting. The only difference now is that the government will actually have to prove that racial discrimination is occurring — just as it does in any other civil-rights lawsuit. If Holder can prove this, as he apparently believes he can, the lawsuits will undermine the administration’s own claim that the Supreme Court has made vigorous enforcement of voting rights impossible.
If the DOJ is bringing these lawsuits as a sop to the administration’s political base, however, then our nation’s top law-enforcement official is behaving irresponsibly. Alas, we cannot discount this possibility. This administration has a highly politicized Civil Rights Division, and using the Voting Rights Act to achieve partisan ends is nothing new for it.