Mounting a strong counter-attack to attempts by the Obama administration and others to give federal courts new powers of supervision over Texas voting laws, officials of the Lone Star State have told a three-judge district court in San Antonio that it cannot impose that regime at this stage, or at any point unless there is new proof of “rampant” racial bias in election procedures in the state.

In a fifty-four-page filing Monday evening, state officials cited the Supreme Court’s June 25 decision in Shelby County v. Holder, and told the District Court that it “cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.”  Preclearance obligations under the Voting Rights Act of 1965, the state contended, can now only be ordered if racial bias in voting in a state rises to the level of the “ever-changing discriminatory machinations that gave rise to the preclearance regime in the first place….Nothing remotely like that has occurred in modern-day Texas.”

The state thus is attempting to turn the new courthouse skirmish over a little-used section of the 1965 law — its Section 3 — into a constitutional battle with high stakes for the future of voting rights.  As the two sides have lined up on opposite interpretations of Section 3, there is now a very real prospect that the Supreme Court may one day have to clarify when a state may be required to get approval in Washington before it can put into effect any change in its election laws or methods.

Preclearance is the process by which a state or local government with a demonstrated history of racial bias in its elections is forbidden to enforce any new voting law or procedure, however minor, unless it gets advance approval from the Justice Department or from a federal court in Washington.  The preclearance regime is spelled out in the 1965 law’s Section 5.  Texas has been under a preclearance obligation since 1975.

However, Texas and any other jurisdiction that has been under Section 5 has now been freed of that, because the Supreme Court in the Shelby County decision struck down the automatic formula (in Section 4) that determined which states and local governments had to obey Section 5.   Without the coverage formula in Section 4 still on the books, the only way that Texas or any other state could be ordered back under Section 5 is through the previously quite obscure provision at the center of the new controversy involving Texas: Section 3.  That is popularly known as the “bail-in” provision, because it would put under Section 5 a jurisdiction that had been outside of  it — as Texas now is.

The Justice Department and civil rights and minority voter advocacy groups have asked that Texas be “bailed in” to a preclearance obligation for the next ten years, and perhaps beyond.  That request is now being considered by the district court in San Antonio, which is reviewing new redistricting maps for electing members of the state legislature and of Texas’s delegation in the U.S. House of Representatives.  Monday’s filing by Texas was the state’s fullest response yet to that request.  At stake in the controversy, of course, is not just a state’s power to draw up new election boundaries, but to enact and enforce a whole host of election laws, including voter identification requirements and controls on when voters may go to the polls.

As Texas’s new filing clearly demonstrates, there are two facets to the state’s argument that Section 3 does not provide a basis for imposing on it a Section 5 preclearance duty: first, its narrow interpretation of Section 3 itself, and, second, its expansive interpretation of the constitutional basis for the Supreme Court’s Shelby County decision at the end of last Term.  Under the first argument, Section 3 as an entry point for Section 5 preclearance is restricted to jurisdictions with the gravest records of intentional race bias in voting.  Under the second argument, the preclearance regime itself is in significant constitutional doubt because the Supreme Court has set a high bar for singling out a state for such treatment.

In order to satisfy Section 3, the state’s new brief argued, a court must make a new finding that a state is engaging in “rampant, widespread, recalcitrant discrimination” of the kind that Congress in 1965 found to be justification for the unusual remedy of preclearance.  If that is not present, then, the state asserted, those who complain that a state is engaging in racial bias in its elections must come forward, in a new lawsuit of the conventional kind, to prove that complaint.   This traditional form of litigating claims of race bias is now “more than adequate” to deal with any problems that now crop up, according to Texas’s argument.   It was only because that traditional approach was found wanting in the 1960s that Congress switched to the preclearance regime, it contended.

The state’s view of the Shelby County decision is that it put the preclearance regime further out of reach of the courts because it was a unique intrusion upon the sovereignty of the states, and denied the basic guarantee that the states are equal to each other.  The Court, according to Texas, found preclearance to be an “extraordinary” remedy for Congress to have chosen.   It also would be “extraordinary,” the state went on, for a court to now impose a preclearance regime except in extraordinary circumstances.  Having a court order that regime into effect for a state, the brief contended, is “no less constitutionally suspect” than it was for Congress to do so.

The new Texas brief also offered a variety of other, less sweeping arguments against imposing preclearance in the San Antonio case: that the fight over the redistricting maps at issue is now moot, that the challengers’ claims of continuing racial bias in Texas voting are “meritless,” and that the state has adopted new redistricting maps that “address all potential legal deficiencies” in the 2011 maps that are under review in the case.

The Justice Department and the advocacy groups, in advocating the new and more vigorous use of Section 3 as a bail-in provision to Section 5, have argued that Section 3 gives federal courts far more authority than Texas is arguing, that the redistricting case in San Antonio is a proper case in which to apply Section 3, and that Texas is seriously over-reading the breadth and meaning of the Shelby County decision.   They have noted that the Supreme Court did not even mention Section 3 in the June 25 decision, and that it did not disturb Section 5, even as it nullified Section 4.

After the Supreme Court issued the Shelby County ruling, the San Antonio federal court ordered the parties to file arguments on whether Section 3 was now available as an entry point for Section 5 for Texas.   With the filing Monday of Texas’s reply brief on that point, the materials are ready for that court to rule.

Posted in Shelby County v. Holder, Cases in the Pipeline, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Texas fights new voting supervision, SCOTUSblog (Aug. 6, 2013, 4:02 PM), http://www.scotusblog.com/2013/08/texas-fights-new-voting-supervision/