Dividing two to one, a U.S. District Court in San Antonio on Tuesday allowed the Obama administration to join fully in the ongoing constitutional dispute over Texas maps laying out new state and congressional legislative election districts — a decision that will enable government lawyers to make their own case to put Texas back under court supervision of its voting laws.  The three-judge court’s ruling is here.

The San Antonio case is one of two involving voting rights in Texas that the administration is attempting to use to restore a requirement of advance judicial approval for any change that the state makes in any voting law or method.  Texas previously was obliged to get such approval under the 1965 Voting Rights Act, but that regime ended with the Supreme Court’s ruling in June in Shelby County v. Holder.

In the other case, the administration is pursuing its own lawsuit in a district court in Corpus Christi against Texas’s controversial voter ID law — one of the strictest in the nation.  The San Antonio and Corpus Christi cases are proceeding independently of each other, but the most significant issue in each is the meaning and scope of the 1965 law’s Section 3 — a provision left undisturbed by the Justices in the Shelby County ruling.

Section 3 gives a federal court permission, after it finds that a state has enacted laws that unconstitutionally discriminate against minority voters, to impose on the state a continuing legal duty to get the court’s permission for any change — however minor — in its voting requirements.   In dueling legal papers filed in the San Antonio court, the administration’s Justice Department and the state of Texas’s attorney general have taken far different views of how extensive the Section 3 provision is, with the government arguing that it is very wide and the state contending that it is very narrow and can rarely be used.

The San Antonio court has already ruled that it will allow new Section 3 claims to be made in the state by minority voters and civil rights groups that have been contesting the redistricting maps since they were adopted more than two years ago.  But the order Tuesday allowing the Justice Department to intervene directly could have the effect of buttressing the Section 3 claims.

In the Shelby County decision, the Supreme Court struck down the 1965 law’s Section 4, which had set up an automatic formula that would impose an advance clearance requirement upon states and local governments that had a significant prior history of racial bias in their elections.  The Section 4 formula, the Court declared, was seriously out of date, and thus discriminated against the states — like Texas — that were singled out for the burden of satisfying either the Justice Department or a federal court in Washington before they ever could implement any voting change.   The Washington clearance (or preclearance) requirement was imposed under Section 5 of the 1965 act.  Although the Court did not take a position on the validity of Section 5, it essentially made that provision unenforceable by striking down the formula for imposing that regime.

In Tuesday’s ruling, the majority in the San Antonio court rejected the arguments of Texas lawyers that the federal government’s move to intervene was filed far too late and would delay the already prolonged case further, and impair Texas’s ability to continue to defend itself against the constitutional complaints against maps that the state legislature approved in 2011 to redistrict the lower house of the legislature and the state’s seats in the U.S. House of Representatives.

Texas has already lost an argument in the San Antonio court that the challenges to the 2011 redistricting maps are now legally dead (“moot”), because the legislature this year adopted new plans that replace the earlier maps and thus those maps will never be used.  But the Justice Department and civil rights groups have been arguing that the challenges to the 2011 maps are still alive, at least as the basis for imposing a Section 3 mandate for court clearance of any Texas voting alteration.

U.S. District Judges Orlando L. Garcia and Zavier Rodriguez voted in favor of allowing the government’s intervention, while the third member of the panel, Circuit Judge Jerry E. Smith, dissented.   Judge Smith accepted the arguments that Texas had made in opposition to U.S. intervention, and argued that, at most, the government should be allowed into the case only as an amicus in support of the other challengers.

Judges Garcia and Rodriguez said that the federal government plays a crucial role in enforcing the 1965 law, and will play such a role if the courts ultimately decide to put Texas back under a clearance regime under Section 3.   On the question of whether the federal lawyers waited to long to seek to enter the redistricting case, the judges in the panel majority said the move to intervene came quite quickly after the Supreme Court’s Shelby County decision — the ruling that set the stage for the first major tests of whether Section 3 can be a substitute for the former Section 5 regime of court supervision of a state or local government’s voting systems.

Moreover, the judges in the majority said that the government lawyers may well be able to add arguments of their own that would be different from those that the existing challengers will be making.

Judge Smith, in dissent, said the challenges are being handled competently by the lawyers already involved in the case.  And, in any event, he said, the government could have sought to intervene two years ago, but did not do so.   The motion to intervene, he said, “is more than two years late.”

In the Corpus Christi voter ID case, the government does not need permission to intervene, since it has filed its own lawsuit against that provision.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, U.S. allowed into Texas voting case, SCOTUSblog (Sep. 24, 2013, 6:37 PM), http://www.scotusblog.com/2013/09/u-s-allowed-into-texas-voting-case/