Dusting off a little-used section of the 1965 Voting Rights Act, Attorney General Eric Holder made headlines last week when he asked a federal court in San Antonio to take back control of Texas’s voting rules. The move is thought to be a prelude to a broader battle with Republican states following a landmark Supreme Court ruling that gave GOP regions more autonomy over their election laws. But Mr. Holder’s fight with Texas may not be worth it, at least according to University of California-Irvine law professor Richard Hasen, an electoral law expert who supports tougher voting-rights protections. The best thing that can be said about the Justice Department’s legal strategy is that it’s better than nothing, he said. While the Supreme Court freed nine states and several counties from having to get permission before making changes to voter rules, it left intact Section 3 of the Voting Rights Act. Under that provision, a court can impose special oversight of a jurisdiction. It’s a process known as “bailing in.”
Mr. Holder is taking a risk, says Mr. Hasen, who was highly critical of the Supreme Court’s Shelby decision. The professor argues in a National Law Journal column that Mr. Holder’s “gambit,” as he puts it, could backfire by discouraging Congress from passing a new law to guard against voting-rights abuses.
As it stands, Congress is showing little appetite for a new voting-rights bill. But as they watch Holder’s fight with Texas play out, Democrats in Washington may be tempted to punt the whole issue over to the courts, Mr. Hasen says. Republicans, meanwhile, are rallying in support of Texas.
“It makes it less likely that Congress is going to do something,” Mr. Hasen told Law Blog. On top that, Mr. Holder faces an uphill struggle in court, Mr. Hasen added.
Up until June, Texas and the eight other covered states had little control over their voting rules. To revise them, they needed to first prove that the changes wouldn’t have a discriminatory effect or purpose.
Now, the burden is reversed under Section 3. For a judge to put Texas or another jurisdiction back on a leash, there must be proof of intentional discrimination, in violation of the Fourteenth or Fifteenth Amendments.
Full Article: A Critical Look at Holder’s Texas ‘Gambit’ – Law Blog – WSJ.