By Mike Lillis - 07/25/13 09:22 PM EDT
The Obama administration has every right to challenge Texas' unilateral adoption of new voting laws, a top Republican argued Thursday.
Rep. James Sensenbrenner (R-Wis.) said the Voting Rights Act authorizes the Justice Department to seek a court order requiring states to get federal approval before implementing new election procedures, as Attorney General Eric Holder said he will do Thursday in the case of Texas.
But Sensenbrenner, who as head of the House Judiciary Committee in 2006 championed the last VRA reauthorization, suggested those critics have misread his law.
"The department’s actions are consistent with the Voting Rights Act," Sensenbrenner said Thursday in an email.
Although the Supreme Court scrapped the law's Section 4 coverage formula, Sensenbrenner noted, it did nothing to preclude legal action against voting precincts in cases of alleged racial discrimination, as authorized in Section 2.
Indeed, by eliminating Section 4 and leaving the other provisions intact, Sensenbrenner says the court has set the stage for a spike in legal challenges to state and local voting laws.
"Increased litigation will be one of the major consequences of the court’s decision as courts will have to litigate more allegations of voter discrimination under Section 2 and whether jurisdictions should be 'bailed-in' to preclearance coverage,” he said.
The "bailed-in" comment refers to yet another provision of the law – Section 3 – which says that if a court finds racial discrimination at the polls to be intentional amid a Section 2 challenge, then the judge may subject that jurisdiction to the additional voter protections provided by Section 5.
The Section 4 coverage formula applied the Section 5 protections, on a blanket basis, to nine states with documented histories of racial discrimination. The Section 3 provision allows for the application of those same protections on a case-by-case basis.
The first route was shot down by the court; the second was not.
Citing a 2012 redistricting case in Texas, Holder said Thursday that there's enough evidence of "intentional racial discrimination" that "Texas should be required to go through a preclearance process whenever it changes its voting laws and practices."
Holder's challenge could have immediate practical implications, as Texas quickly tapped the Supreme Court ruling to adopt a voter ID law that was awaiting federal approval before the decision. If a court were to re-apply the Section 5 protections to the state, it would put that law back on hold.
Texas Republicans blasted Holder's maneuver, saying it represents another case of the DOJ overstepping its legal boundaries.
"Holder's refusal to accept the judgment of the U.S. Supreme Court regarding preclearance continues the Department's longstanding pattern of refusing to follow the law," Sen. Ted Cruz (R-Texas) said in a statement.
Rep. Randy Neugebauer (R-Texas) also attacked the move, saying it "disregards the Supreme Court decision on the Voting Rights Act and demeans states’ rights."
"I’m surprised that so soon after political targeting came to light at the IRS, the Obama administration would resort to the same tactic to minimize opposition in Texas," he said in a statement.
Across the aisle, Democrats are squarely in Sensenbrenner's camp.
Rep. Bobby Scott (D-Va.), who's working on a congressional response to the Supreme Court's ruling, said the immediacy with which states like Texas adopted tougher voting rules in the wake of the Supreme Court decision "showed why Section 5 was so important."
"You had people declaring that they could now pass laws that they could not pass because they had to show that they were not discriminatory," Scott said Thursday. "[That] only makes sense if you assume that they know that they would not be pre-cleared."