The Washington Post reports 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.
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.