DOJ to sue Texas under Voting Rights Act 'bail-in' provision

By Brentin Mock, Colorlines

As we reported shortly after the U.S. Supreme Court gutted the Voting Rights Act's Section Five, Texas could still face "preclearance" -- federal review of election changes to ensure disenfranchisement won't result -- under the Section Three "bail-in" provision. Both the voter ID and the redistricting laws Texas passed in 2011 were found by the Justice Department to have racially discriminatory effects, particularly on Latino-Americans. For the redistricting law, a federal court found discriminatory intent. 

The experts at Texas Redistricting & Election Law blog were the first to bring this to the public's attention. But this week U.S. Attorney General Eric Holder confirmed before the Urban League National Conference in Philadelphia that the Justice Department will, in fact, follow through with suing Texas under Section Three to bring it back into preclearance supervision for its redistricting law.

From Holder's prepared remarks for the Urban League:

In fact, just last year, a federal court noted the "vital function" the Voting Rights Act played in protecting African American voters who would have been disproportionately impacted by a photo ID law in South Carolina. It prompted the state to change the way its new voting statute will be implemented in future elections to eliminate what would have been a dramatic discriminatory effect. Another court cited the Voting Rights Act in blocking a Texas congressional redistricting map that would have discriminated against Latino voters. And in that ruling, the court noted that the parties "provided more evidence of discriminatory intent than we have space, or need, to address here." …

And today 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.

Read his full remarks here. 

Over at The Washington Post, former Justice Department spokesman Matthew Miller said that the Justice Department could also do the same in North Carolina if they pass their photo voter ID law, which right now is being cast as having some of the worst restrictions in the nation. 

Holder said the lawsuit against Texas is the Justice Department's "first action to protect voting rights following the Shelby County decision," but that using provisions like Section Three "are no substitute for legislation that must fill the void left by the Supreme Court's decision."

Texas Redistricting & Election Law blog explains what bailing in means as:

The statutory text of section 3(c) of the Voting Rights Act says a court can order bail-in in a "proceeding instituted by the [United States] Attorney General or an aggrieved person" if it finds "that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision." (emphasis added)

The Fourteenth Amendment gives all Americans equal protection under the law regardless of race, while the Fifteenth said African Americans could vote free of any race-based voting obstructions. The questions a federal court may ask to see if Texas' redistricting laws violate those constitutional protections may be (again from Texas Redistricting & Election Law Blog):

Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that likely would be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to reoccur? Do political developments, independent of this litigation, make reoccurence more or less likely?

As we reported last July, Texas's Voting Rights Act violations have been persistent and repeated since they were brought under preclearance in the 1970s. A report from MALDEF found that "Texas had far more Section 5 withdrawals, following the DOJ's request for information to clarify the impact of a proposed voting change, than any other jurisdiction during the 1982-2005 time period. These withdrawals include at least 54 instances in which the state eliminated discriminatory voting changes after it became evident they would not be precleared by the DOJ."

The redistricting law that Texas passed in 2011 was blocked by federal courts after racially discriminatory intent was found, but Texas Attorney General Greg Abbott said he was going to reinstate it immediately after the Supreme Court's Shelby decision was handed down. 

But the NAACP and the League of United Latin American Citizens (LULAC), along with the Mexican-American Legislative Caucus and the Texas Latino Redistricting Task Force, sued the State of Texas to block the redistricting law's reinstatement because the new congressional lines diluted black and Latino votes. Holder had until Friday to decide if those plaintiffs had a case for bailing in Texas under Section Three. Thursdays announcement shows he agrees, and that a new chapter in voting rights protection has begun, albeit compromised.