Let’s turn to the specifics of the Texas filing, which asks a federal court to reinstate preclearance for the next ten years. That is, Holder would like to require Texas to obtain the approval of the Justice Department or a federal court in Washington before it can make any changes in its voting laws. Texas attorney general Gregg Abbott tweeted that he’ll “fight Obama’s effort to control our elections,” and that he’ll keep fighting “against cheating at the ballot box.”
Certainly, preclearance requirements are, in general, an extraordinary intrusion on state sovereignty. Under Section 3, Holder will have to prove that Texas has engaged in deliberate, intentional racially discriminatory conduct that violates 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 the Supreme Court struck down Section 5’s coverage formula. But one hopes that the evidence will simply not be there to show that any of those states are or have been intentionally and repeatedly discriminating in voting. Of course, Holder and his political allies believe that voter-ID laws are in themselves 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 that 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.
The Justice Department and its allies will also, in particular, point to past cases in which jurisdictions have been denied preclearance for proposed redistricting or voter-ID laws. But that is no proof of actual discrimination, because preclearance can be denied on the basis of mere disproportionate effect. In the redistricting context, for example, the Justice Department has often refused to grant preclearance because there is not enough racial gerrymandering — i.e., discrimination on the basis of race. The failure to engage in sufficient racial gerrymandering is not a constitutional violation — indeed, to the contrary, such gerrymandering is itself presumptively unconstitutional.
So this may well be an ideologically driven lawsuit, and Holder may not have the evidence to convince a court that Section 3 ought to be invoked against these states. But it does show that, contrary to the claims of critics of the Shelby County decision, the 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 reflects modern America. If Holder loses his lawsuits, it will not be because he needs more laws — it will be because he was unable to show that state governments are still engaging in racial discrimination in voting, and there should be some comfort in that.
— Roger Clegg is president and general counsel of the Center for Equal Opportunity, and Hans A. von Spakovsky is senior legal fellow at the Heritage Foundation.