In response to the Supreme Court’s decision to strike down Section 4 of the Voting Rights Act, Attorney General Eric Holder announced Thursday a new legal tactic to combat voting laws he views as racially discriminatory. Texas, which has indicated that it plans to go ahead with its broadly popular voter ID law, will apparently be Holder’s first target.
Fortunately, racial-polarization politics works better in the political sphere than it does in the courtroom.
In contrast to the liberal hyperventilation over the Supreme Court’s Shelby County v. Holder decision — lamenting the return to “Jim Crow” or complaining that the Court would now permit “egregious infringements” on voting rights — other sections of the VRA actually do permit the Attorney General to correct violations of voting rights by the states.
Unlike the now defunct Section 4 of the VRA, which identified a decades-old list of states requiring “preclearance” before making any changes to their voting laws, Holder is relying on Section 3, which permits aggrieved parties or the Attorney General to ask federal courts to require preclearance for jurisdictions which have committed recent Constitutional voting-rights violations.
This rarely used section of the VRA, sometimes referred to as the “pocket trigger,” allows courts to craft preclearance requirements for offending states that did not fit under the coverage formula previously contained in Section 4. The June decision in Shelby overturned Section 4, but left the other sections intact.
Although the lawsuit would be permitted under the VRA and is constitutional on its face, Holder has an extremely difficult case to argue.
Section 3 requires the Justice Department to prove that Texas’ voting laws are intentionally discriminatory — a pretty tough standard. It’s not enough to simply show that minorities are affected by a change.
Holder’s alleged smoking gun against Texas? He pointed to evidence of racial discrimination in a 2012 redistricting controversy and “the history of pervasive voting-related discrimination against racial minorities” in Texas.
Note how those pervasively racist Texans were busy electing Hispanic U.S. Senator Ted Cruz in the 2012 elections. Also, perhaps the fact that black voter turnout regularly outpaces white turnout in modern Texas is a more relevant measure of the state’s “voting-related discrimination” than is Holder’s memories of the 1960s. In any case, “history” isn’t enough to condemn a state under Section 3. One needs to prove an actual, recent and intentional violation.
And there’s one final nuance to Section 3 that makes it harder for Holder to get his way against Texas. Judges may tailor any requirement for preclearance narrowly, such as only requiring preclearance for redistricting, but not for voter ID or other voting changes. Even if Holder successfully convinces the judges that preclearance is necessary for redistricting, it’s extremely unlikely a court would require preclearance for all voting changes across the entire state.
Bottom-line: the Attorney General’s most recent rallying cry to “stand against discrimination” is probably more about politics than it is about the VRA or the Constitution.