By Sam Baker - 07/25/13 09:06 PM EDT
Attorney General Eric Holder’s surprise decision to challenge Texas’s voting laws triggers a huge new fight between the federal government and Southern states dominated by the Republican Party.
Legal experts said the decision to seek a court order requiring Texas to obtain federal clearance before changing its voting laws lays the groundwork for an aggressive push to restore as much federal oversight as possible over state voting laws.
Holder’s move is in response to the Supreme Court’s decision last month to toss out a central part of the 1965 Voting Rights Act that determined which states required preclearance from the federal government before changing their voting laws.
The ruling stripped away power the federal government used even in 2012 to block last-minute restrictions on early voting and changes to voter-ID requirements. Obama and Holder had vowed to address voting problems such as long lines and last-minute changes and said the court's ruling could make those issues worse.
“Although mandated by the Constitution, voting rights are not always guaranteed – in practice – without robust enforcement," Holder said Thursday in a speech to the National Urban League.
Texas officials and lawmakers reacted with anger to the Justice Department move, signaling a long fight ahead.
“Once again, it's the federal government telling the states what they can and can't do,” said Rep. Blake Farenthold (R-Texas). “Even after some defeats on the Voting Rights Act in the Supreme Court, the administration still continues to thwart the will of the people of Texas.
Texas Gov. Rick Perry (R) called it an “end-run around the Supreme Court,” while Rep. Kevin Brady (R-Texas) argued Holder was trying to “single out Texas.”
Experts say the fight could soon end up where it started — the Supreme Court. If the Justice Department wins an order requiring preclearance for Texas, the state could appeal the order quickly to the high court.
They said the Justice Department has a good chance of winning its Texas challenge and will likely pursue the same strategy in other states.
“I do see it as a strategy that could also apply in other places,” said David Gans, the director of the civil rights program at the liberal Constitutional Accountability Center.
In the Texas fight, Holder is relying on a part of the Voting Rights Act known as the “bail-in” provision, which lets the courts require preclearance in response to intentional racial discrimination.
The Supreme Court did not touch this part of the law in its decision last month, opening the door for the Justice Department.
“I think you’ll see more effort to use bail-in. Bail-in, in the past, has been used in some pockets of the country where preclearance didn’t apply,” Gans said. “I think you’ll see more efforts by plaintiffs to show that states are engaged in intentional racial discrimination.”
A federal court has already suggested that Texas intentionally discriminated against minority voters when it redrew its congressional districts. Holder said that finding supports his effort to “bail in” Texas.
“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,” Holder said.
Proving intentional discrimination is difficult. The part of the law the Supreme Court struck down was designed in part to help the federal government avoid having to make that case. But legal experts said Holder clearly signaled that he intends to try, and not just in Texas.
“There is intentional racial discrimination occurring, and it’s not only in Texas, but in many of the covered jurisdictions in the country,” Gans said.
Experts agreed that bail-in lawsuits would not be able to reconstitute the old system and won’t be as effective a tool for the Justice Department. Bail-in would be a “poor substitute” for the old preclearance requirements, Hasen said, but “it’s a lot better than nothing.”
It’s hard to predict how far the department will be able to push its new approach.
The bail-in mechanism hasn’t been used much (because the procedures the court struck down were easier to use), so there is little precedent to help determine how effective Holder’s strategy will be.
“We’re in uncharted waters, to the extent we’re trying to see some kind of substitute,” Hasen said.