The Obama administration, in a sweeping assault on the state of Texas’s history on minorities’ right to vote, asked a federal court in San Antonio on Thursday to impose a ten-year mandate on the state to get official clearance in Washington before it could change any election law or procedure.  In addition, the filing in a three-judge district court suggested that such a mandate beyond ten years should be considered if biased conditions continue. (The main filing, a twenty-eight-page document, is here.  It does not include the filed exhibits.)

This marked the first effort by the administration in a broad new strategy to protect minorities at the polls after losing a major case on that issue last month in the Supreme Court.  The key point of that strategy, using a little-known provision of the 1965 Voting Rights Act, was discussed in an earlier post on this blog today, found here.  (That post provides background on the issue.  This post deals with the specifics of the claims made this afternoon in the San Antonio court in this administration’s first formal filing seeking to use the law’s Section 3 “bail-in” provision.)

If the San Antonio court does as the government asked, it could set the stage for a new constitutional conflict over the 1965 law.  Texas has already raised constitutional questions about the maneuver the government is now beginning, and the Justice Department filing sought to refute those points.  Moreover, the new filing disagreed with the positions that  Texas has recently taken on virtually every issue about the scope of the Section 3 mechanism for bringing a state or local government under the preclearance regime.

A specific target of the government’s new challenge is a set of redistricting plans that the Texas legislature had adopted two years ago, creating new election boundaries for electing members of the lower house of the state legislature and for the state’s delegation in the U.S. House of Representatives.  Although the 2011 plans have now been replaced by 2013 maps, the Justice Department filing said the discriminatory effects of the 2011 plans could provide a basis for putting Texas under a preclearance mandate, and thus the state would then have to get its 2013 maps approved in Washington — either by the Justice Department or by a three-judge U.S. District Court.  All other future election changes would also have to get such clearance.

The administration already had persuaded a three-judge panel in Washington that the 2011 plans for the state House and the U.S. House seats would harm the rights of minority voters, and the new filing said the government would be laying before the San Antonio court the evidence used in that proceeding to help justify a Section 3-based preclearance requirement for all election law changes made since May 2011, and hereafter for a minimum period of ten years.

The 2011 plans also have been challenged by minority voters in a group of cases pending before the three-judge San Antonio district court.  They did so under a different provision of the 1965 Act (Section 2).   The evidence so far offered on that claim, the Justice Department filing said, shows that Texas crafted the 2011 maps “with the intent to discriminate against minority voters,” in violation both of the 1965 law and of the Constitution’s Fourteenth and Fifteenth Amendments.  Beyond those redistricting maps, the Department argued, there is also “substantial evidence of recent discrimination” in Texas that violates both the 1965 law and the Constitution.

Once the San Antonio court found “any constitutional violation” that would justify a court-ordered remedy, the filing contended, the requirement for putting Texas under a preclearance mandate would have been met and the court would not have to ponder further the legality of the 2011 plans.

The government document noted that, as of now, Texas has no legal obligation to get any voting law or procedure cleared in Washington.  That is because of the Supreme Court ruling in late June in the case of Shelby County v. Holder struck down the formula under the Voting Rights Act’s Section 4 that had kept Texas, since 1975, under the Section 5 preclearance obligation.  But, the document noted, the Court’s ruling did not disturb either Section 5 as a part of the law, and did not disturb the use of Section 3 as a way to put Texas and other jurisdictions under Section 5.

Texas had previously argued that the case against it in the San Antonio court is legally dead (“moot”) because the 2011 redistricting maps have now been supplanted by those enacted just last month by the legislature.   The Justice Department sought to counter that argument, contending that a case does not become moot by changed circumstances if there is still a remedy that can be put in place for the violation that had led to the court case.  If a jurisdiction like Texas could simply change its laws as a way of getting out from under the Voting Rights Act’s preclearance requirement, the Department asserted, that would “create the type of gamesmanship” that Congress was attempting to prevent by adopting Section 5′s preclearance procedure, and by adopting Section 3 as a way to put that procedure in place.

Besides disputing Texas; claim that the redistricting case is now moot, the new government document made a point-by-point rebuttal of arguments Texas had made in a brief filed in the San Antonio court on Monday, laying out a version of the Section 3 mechanism that was decidedly narrow in scope.  Under the alternate interpretation the government gave to Section 3, it could be invoked with far more flexibility by a federal court handling a voting discrimination case.

While the government is focusing on Texas’s recent history of alleged intentional bias in elections, in order to try to justify imposing preclearance under Section 3, the document it filed this afternoon also included a wide-ranging indictment of the state for similar practices that the government said stretch all the way back to the Reconstruction era, after the Civil War.

The government is not directly involved in the San Antonio case; that case was filed by minority voters, members of Congress and civil rights groups.   The government thus made its filing in that case through a “statement of interest,” rather than as a brief by an involved party.

Meanwhile, the government is directly involved in a case in a three-judge District Court in Washington that also focuses on the 2011 redistricting maps.  In that case, Texas sued the federal government, seeking court approval of those maps under Section 5 of the Voting Rights Act.  Clearance was denied by that court.  The challengers to those maps in the San Antonio court have intervened in the Washington case, and earlier this month, they asked that court to allow them to add to the case a plea to put Texas under preclearance through the Section 3 process in the wake of the Supreme Court’s Shelby County ruling.

Thursday evening, the Justice Department filed two documents in the Washington case.   In one, Justice Department lawyers said they do not object to a new request by Texas to dismiss that case in view of the legislature’s enactment of new maps to replace the 2011 districts.   The government said that, since Texas has no plans to implement the 2011 maps, there was no need for that court to rule further upon that case.

In the second, and more important, document filed by the government in Washington, it argued that the San Antonio case was a better lawsuit in which to decide whether to apply the Section 3 remedy and put Texas back under a preclearance duty.  There are procedural questions, that filing argued, about whether the intervening challengers have a right to put forth a Section 3 plea in a case in which they are not the ones who had sued.  That is not an issue in San Antonio, it said..

The papers filed in Washington were submitted just ahead of a Friday deadline for new filings in that case.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. asks new limit on Texas vote laws, SCOTUSblog (Jul. 25, 2013, 9:59 PM), http://www.scotusblog.com/2013/07/u-s-asks-new-limit-on-texas-vote-laws/