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Key date for test of voting law’s preclearance requirement

A key date — July 26 — has now been set for a test of the Obama administration’s view on a legal mechanism for continuing to protect minority voters against discrimination at the polls — including court review of new election laws before they go into effect.  The mechanism potentially could allow the government to salvage something very significant from its defeat in the Supreme Court’s ruling last month on the Voting Rights Act of 1965, in the case of Shelby County v. Holder.

The mechanism is the 1965 law’s Section 3.  Under that provision, if a state or local jurisdiction has a recent history of racial discrimination in its elections, a court can order it to get official clearance in Washington before it can implement changes in its voting laws or methods.  This is known as the statute’s “bail in” mechanism.  The so-called “preclearance” process — for decades a very successful way to protect minority voters’ rights — comes under the law’s Section 5, and both Sections 3 and 5 are at least technically intact even after the Shelby County decision.

The state of Texas has insisted that it has now come out from under Section 5, as a result of that ruling, but that claim is now being challenged in a lower-court case over new redistricting maps for the Texas legislature and the state’s delegation in the House of Representatives.  And it is that case on which the Justice Department’s views about Section 3 are to be filed by a week from tomorrow, under an order issued this week by a three-judge district court in Washington.

Right after the Supreme Court ruled on the Voting Rights Act on June 25, the Justice Department stopped any further review of pending preclearance requests from state and local governments.  It did so because the Court majority had struck down the legislative formula (in the Act’s Section 4) that determines who is covered by Section 5, and had declared that the coverage formula could no longer be used in its present form.

Even though Section 5 survived, the decision appeared to have seriously weakened it.  In fact, Attorney General Eric Holder, in a speech on Tuesday to the NAACP annual convention in Orlando, Florida, implied that Section 5 itself had been “invalidated.”  He spoke about the loss of “a key part of the Voting Rights Act,” and then went on to talk about the preclearance provision and how potent that had been “for addressing inequities in our elections system.”

While he vowed in that speech to use “every tool that remains available to us,” he made no mention of Section 3 as a potential way to put Texas and other jurisdictions back under Section 5.

However, lawyers for minority voters in Texas are seeking to rely explicitly on Section 3 in order to maintain preclearance review of at least the Texas redistricting maps and, potentially, other election law provisions, too.   They have done so in the redistricting case that went to the Supreme Court last Term, but then was sent back to the district court in Washington on June 27 for a new look, in the wake of the Shelby County ruling.  That case is Texas v. United States (District Court docket 11-1303).

On July 3, lawyers for minority voters and for civil rights organizations in Texas formally asked the district court for an order “subjecting the state of Texas to a preclearance requirement, under Section 3….for all voting-related changes enacted by the state,” and to keep that review mechanism in place for “no less than 10 years.”

The motion asked permission from the district court for the filing of this new legal claim, arguing that the Shelby County decision had done nothing to impair the Section 3 method for imposing preclearance requirements under Section 5, and contending that “the state of Texas is undoubtedly the prime example of why at least some pre-enforcement review under the Voting Rights Act is still necessary to vindicate the voting rights of minority citizens.”

The motion said that the Justice Department had been consulted about this plea, and it reported that the Department was “not in a position to state a view at this time,” but would do so after the motion was filed formally.  Texas, which on July 3 had asked the district court to dismiss that case altogether under the Shelby County decision, has not yet filed a response to the Section 3 claim.

In orders issued this week, the district court gave Texas an extension of time to file its response on that point on July 26, and similarly gave the Justice Department the same extension.

Both Texas and the Justice Department are expected to comment, in their replies, on the procedural point of whether the private parties advancing the Section 3 claim should even be allowed to file that, and on the separate point of whether a Section 3 remedy is now available, at least in this case.

There is no set timetable for the district court to rule on the Section 3 issue.   It also has before it Texas’s argument that the case no longer involves a live controversy, because the Texas legislature has recently adopted new redistricting maps replacing those at issue in the case, as well as its argument that “Texas is no longer subject to preclearance” because of the Shelby County ruling.

Meanwhile, the Judiciary Committees in both the Senate and the House have held new hearings on the question of whether Congress will pass a new version of the Voting Rights Act to keep the Section 5 preclearance requirement in effect through some kind of new coverage formula that might satisfy the Supreme Court.  The prospects for final passage of any such proposal are uncertain at this point.

[Disclosure:  Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, was among the counsel to Representative F. James Sensenbrenner et al., who filed an amicus brief in support of the respondents in Shelby County v. Holder.  However, the author of this post operates independently of the law firm.]

Recommended Citation: Lyle Denniston, Key date for test of voting law’s preclearance requirement, SCOTUSblog (Jul. 18, 2013, 5:03 PM),