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New Texas voting disputes

For nearly forty years, the state of Texas has had to ask official permission in Washington before it could put into effect any change in the way its citizens vote.  A week ago, state officials — relying on the Supreme Court’s new ruling on federal voting rights law — said they would no longer have to do that.  Now, however, efforts have begun in two federal courts, 1600 miles apart, to keep that obligation intact.

Those efforts — in Washington, D.C., and San Antonio — are quick sequels to the Court’s decision last week in Shelby County v. Holder (docket 12-96), striking down one key section of the Voting Rights Act of 1965, but leaving other parts of the law on the books and presumably functioning.   One of those other parts, the 1965 law’s Section 3, could provide a method for keeping in force Washington’s legal supervision of Texas voting laws and procedures under another, still standing provision, Section 5.

Relying on the Shelby County decision, lawyers for Texas formally asked three-judge U.S. District Courts in Washington and San Antonio to end challenges to new election districting maps for the state legislature and for the state’s delegation in the U.S. House of Representatives.   Because of the Supreme Court’s ruling, the attorneys argued, those lower courts had lost jurisdiction to veto Texas voting laws before they could go into effect.

In the Shelby County decision, the Justices struck down Section 4 of the 1965 law, which provided the formula that determined which state and local governments had to seek official preclearance of their voting laws under Section 5.  The Court said it was not reviewing the validity of Section 5.  But Texas officials have argued that, without Section 4, Section 5 would not apply to Texas any longer.

The state’s redistricting maps, state Attorney General Greg Abbott said in a public statement last week, “will not need to go through the lengthy and costly federal preclearance process because of Tuesday’s ruling by the U.S. Supreme Court.”   He added that the preclearance process also would not apply to the state’s new voter ID law.

Two developments this week raised questions about the state’s legal stance.  On Monday, the San Antonio federal court held a hearing to gauge where challenges to the state’s redistricting maps stood in the wake of the Shelby County decision.  Afterward, that court ordered lawyers on both sides of the case to file new briefs on Section 3 of the law “and its possible impact on this case.”  That district court order said all parties’ briefs on that point should be filed simultaneously on July 22.

Section 3 is the part of the law that permits the federal government, or private challengers, to ask a federal court to put a state or local government under the preclearance regime provided by Section 5, if such a government has a recent history of discriminating against minority voters.   Besides ordering new written arguments on Section 3’s potential impact, the District Court in San Antonio temporarily refused Texas’s request to dismiss that case (Perez v. Texas, District Court docket 11-360).

Attorneys for black and Hispanic voters in Texas have already said they would pursue a Section 3 request in the San Antonio court.  Today, they did make make such a request in a separate case in a three-judge District Court in Washington.   They asked that panel to allow them to amend their legal claim, so that they could then request that Texas — for the next ten years — be required to seek preclearance in Washington “for all voting-related changes enacted by the state.”  They said that was “a remedy that is necessary to protect minority voters” across Texas.

Earlier today, lawyers for the state asked that same district court to dismiss that case altogether.   In that case, the state had sought clearance for its redistricting maps.  “Given that Texas is no longer subject to preclearance,” the brief motion said, that case is now moot (that is, legally dead).   Moreover, it added that the Texas legislature has now approved new redistricting maps, replacing the ones directly at issue in that proceeding.

That separate case is Texas v. United States (District Court docket 11-1303).  The Supreme Court last week ordered the district court to take a new look at the case, in the wake of the Shelby County decision.

Meanwhile, Texas is expected to seek an end to the separate case over its authority to implement its new requirement of a photo ID for voters in the state — a law that the state attorney general has said is now in effect.  That law had been denied preclearance by a three-judge district court in Washington.  So far, however, there have been no new filings in that case (Texas v. Holder, District Court docket 12-128).   It, too, was sent back by the Supreme Court for consideration of the impact of the Shelby County ruling.

So far, the Obama administration’s Justice Department has made no move in any court to try get Texas newly put under Section 5’s preclearance mandate, but it would be a surprise if it did not do so.

Texas has been covered by Section 5 since 1975.  It thus has been unable since then to implement any new voting law or procedure unless it got advance permission either from the Justice Department or from a three-judge district court.

This complex new legal dispute, in Plain English:

Because the legality of Texas laws that control voting in that state have been under a variety of challenges in different courts, it is quite a challenge to keep them sorted out.  The complexity has been deepened, too, by the Supreme Court’s decision last week on the Voting Rights Act of 1965.  So far, no one — not lawyers or judges — knows exactly how that ruling is going to play out in the ongoing legal saga over voting in Texas.

Since 1972, Texas has been one of the states that, because of their prior history of discriminating against minority voters, has had to abide by a special procedure that Congress first enacted in 1965.  Those states, and some local governments that also have had histories of bias in voting procedures, could not put into effect any new voting law or procedure — however minor — unless they got permission to do so in Washington, either from the Justice Department or a special federal court.

Besides having to go through that clearance process, for such new procedures as new election districting maps for its legislature and for its members of the U.S. House of Representatives, Texas has also faced challenges under another part of the 1965 act — a ban, nationwide in scope, on discriminatory voting laws or methods.

This array of legal challenges has been unfolding over the past two years in federal courts in San Antonio and in Washington.  The Supreme Court also has been involved, from time to time, in each of the several Texas disputes.

The situation that unfolded last week, and continued to unfold this week, focuses on what those two federal courts are now going to do in the wake of the Supreme Court’s June 25 decision striking down some parts of the 1965 law, but leaving other parts still in effect — and, presumably, actually working.  Lawyers for Texas have been trying to put a stop to the various cases, contending that the Supreme Court has now freed it from any obligation to ask Washington for permission to implement voting changes, and also arguing that recent action by the state legislature has made some of the legal proceedings out of date.

In coming days, the two federal courts will be dealing with a welter of filings by lawyers on all sides of Texas’s voting saga, with the very real prospect that — sooner or later — much if not all of the controversy will return to the Supreme Court for final resolution.

(NOTE: The blog thanks the editors of the Texas Redistricting blog for their continuing superb coverage of the variety of disputes over Texas voting laws, helping to keep us current.  A typical example of that blog’s work is this Q&A on Section 3 claims, published Wednesday.)

Recommended Citation: Lyle Denniston, New Texas voting disputes, SCOTUSblog (Jul. 3, 2013, 7:05 PM),