In a speech to the National Urban League in Philadelphia today, Attorney General Eric Holder announced that he will ask a federal judge to require the state of Texas to once again seek Justice Department approval before making any changes to its election laws. The announcement portends a new contest over the federal voting-law review process, known as “preclearance,” which was instituted by the Voting Rights Act of 1965 to prevent certain jurisdictions — mostly in the South — from discriminating against racial minorities or other subgroups of voters.
In Shelby County v. Holder last month, the Supreme Court struck down Section 4(b) of the Act, which mapped the jurisdictions that needed federal preclearance. The justices ruled 5–4 that the formula was outdated and therefore unconstitutional; since the map no longer reflected American racial attitudes, the federal government was no longer justified in violating the equal sovereignty of the states:
Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased §5’s restrictions or narrowed the scope of §4’s coverage formula along the way. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.
With the coverage formula gone, many assumed that the preclearance restrictions in Section 5 were now a dead letter, unless Congress enacted a new formula mapping which jurisdictions ought to receive federal supervision. Holder evidently thinks otherwise — and he also seems to hold a considerably lower opinion of race relations in the South, or at least in Texas. The attorney general announced that he will use Section 3(c) of the VRA to ask the judge to “bail in” Texas, on account of “evidence of intentional racial discrimination” and the state’s “history of pervasive voting-related discrimination against racial minorities.” Under the “bail-in” provision, a jurisdiction found in violation of other parts of the Act can be placed under federal supervision, even if it is not already covered by the now-defunct 4(b) formula.
Below is Holder’s statement in full:
I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act. This request to “bail in” the state – and require it to obtain “pre-approval” from either the Department or a federal court before implementing future voting changes – is available under the Voting Rights Act when intentional voting discrimination is found. Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices.
This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last. 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 that the voting rights of all American citizens are protected. My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found. But let me be very clear: these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court’s decision. This issue transcends partisanship, and we must work together. We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve. And, in our broader efforts, we will continue to look far beyond America’s ballot boxes – to our schools, military bases, and border areas; our immigrant communities, our criminal justice system, and even our workplaces – in order to advance the fight for equality and against injustice.
Via Jamie Dupree.