The Justice Department is unveiling a new tactic in its long-running battle with Texas over the drafting of election districts and its new voter ID law, setting the stage for what promises to be a new round of tough litigation.
Attorney General Eric Holder announced on Thursday that the department’s civil rights division would urge a federal judge to order Texas to continue to submit all election law changes to Washington for preapproval.
The action would effectively reimpose the same preclearance requirements that the US Supreme Courtrendered inoperative when it struck down a portion of the Voting Rights Act last month.
In its ruling, the high court declared that Congress did not properly identify which jurisdictions should be covered and which should not. By invalidating the coverage formula in Section 4 of the VRA, the court left the preclearance requirements in Section 5 also inoperative.
But there is another section of the voting rights law, Section 3, which authorizes a federal judge to order a state or local jurisdiction to comply with Section 5 oversight authority. A federal judge can impose such a requirement once the judge has determined that the jurisdiction engaged in intentional voting discrimination that violated constitutional rights.
Mr. Holder said Justice Department lawyers will cite a three-judge panel decision striking down Texas redistricting plans as discriminatory. The court action, he said, was proof of discrimination and would justify such a court order.
“Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case…, we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,” Holder said.
Texas Gov. Rick Perry (R) vowed to fight back.
“Once again, the Obama Administration is demonstrating utter contempt for our country’s system of checks and balances, not to mention the US Constitution,” Governor Perry said in a statement.
“This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process.”
Holder made his comments during a speech to the National Urban League in Philadelphia. His remarks come as members of Congress are studying options to beef up or amend the VRA following the high court decision.
The comments also signal the Justice Department’s intent to continue its aggressive opposition to Republican-backed voting changes in Texas related to redistricting and the state’s requirement that voters present government-issued photo ID at the polls.
“This is the department’s first action to protect voting rights following the [Supreme Court] decision, but it will not be our last,” Holder said.
Civil rights lawyers at the Justice Department would “fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected,” he said.
Section 2 of the VRA permits lawsuits by any individual, group, or government agency to stop illegal discrimination in voting.
Some legal analysts say that Section 2 is the heart of the VRA and that it provides more than enough legal muscle to protect minority voting rights.
Others dispute this claim, saying it is much more expensive and time-consuming to litigate voting-rights cases under Section 2 than under the preclearance provisions of Section 5.
The Justice Department under the Obama administration has not filed a single lawsuit under Section 2, according to legal experts.
The department instead favored actions under Section 5, in part because the preclearance provision shifts the burden of proof from the government to the state or local jurisdiction seeking approval of an election change. Instead of the government having to prove that the state violated the law, the state must prove that it is innocent of accusations that it is violating the law.
This shifted burden makes it substantially easier for the Justice Department to prevail in such cases, experts say.
Holder wasn’t the first to come up with the idea of using Section 3 to reimpose Section 5’s preclearance requirements.
In early July, a coalition of civil rights groups and Texas lawmakers filed briefs in federal court in Washington and San Antonio asking the judges in the Texas redistricting cases to impose new preclearance requirements on Texas.
“The State of Texas is undoubtedly the prime example of why at least some pre-enforcement review under the Voting Rights Act is still necessary to vindicate the voting rights of minority citizens,” wrote Allison Riggs of the Southern Coalition for Social Justice.
“Texas has engaged in persistent and intentional efforts to diminish the voting strength of voters of color, and to exclude them from the political process,” Ms. Riggs said. “If ever a jurisdiction was deserving of being affirmatively subjected to the preclearance requirement [under Section 3], Texas is that jurisdiction.”
According to the court docket, both the State of Texas and the Justice Department are set to respond to the motion in the Washington case in written briefs due on Friday.
After the Supreme Court handed down its decision in the VRA case in late June, the high court then vacated an earlier ruling in the Texas case by the three-judge court in Washington.
At approximately the same time in late June, Texas lawmakers repealed the challenged election district maps from 2011 and adopted instead voting districts drawn by the court. Those maps are the subject of opposition by Democrats and minority groups in Texas.
In a brief filed in federal court in San Antonio on Monday, lawyers for the State of Texas said court action imposing preclearance requirements on a state is justified only in limited circumstances.
The court must first find there had been a violation of constitutional rights protected by the 14th or 15th Amendments. Texas insists no such finding has been made.
The court’s order setting election plans for 2012 was not a final ruling establishing a violation of constitutional rights, the Texas brief said. It was merely a preliminary finding, according to Patrick Sweeten of the Texas Attorney General’s Office.
“Such a finding cannot be made now or in the future because this case has become moot due to the enactment of new redistricting plans for all future elections,” Mr. Sweeten wrote in his brief. “As a result of that mootness, this court lacks jurisdiction to make a finding of constitutional violations in the 2011 redistricting maps.”
In their brief in Washington, the coalition of civil rights groups and Democratic lawmakers in Texas argues that Texas had engaged in a clear pattern of discrimination in voting that has been well documented by the court in its findings.
“This three-judge court unanimously concluded that the State of Texas engaged in intentional discrimination against African-American and Latino citizens in enacting the 2011 State Senate and Congressional redistricting plans,” Riggs wrote in the brief.
She urged the court to reject claims that the case is moot. Riggs suggested Texas should be ordered to submit to preclearance of all its voting changes for at least the next 10 years.
“Findings of intentional racial discrimination in voting made by this Court, other courts, and the Department of Justice warrant application of this prophylactic remedy to restrain Texas’ mistreatment and political exclusion of its historically marginalized citizens,” Riggs said.