The U.S. Department of Justice announced on July 25 that it would seek renewed federal oversight of some jurisdictions previously subject to DOJ “preclearance” because of their history of racial discrimination in voting. The DOJ’s move, which will begin with Texas, is made under the Voting Rights Act’s little-used “bail in” provision—and it is risky, both politically and legally. But given the few alternatives to protect minority voters, U.S. Attorney General Eric Holder probably figures the risks are worth taking. In late June, the U.S. Supreme Court in Shelby County v. Holder stripped the U.S. Department of Justice of a key tool used to protect minority voters. Section 5 of the Voting Rights Act required states and localities with a history of racial discrimination in voting to get approval or preclearance from the DOJ or a three-judge court in Washington D.C. before making any changes in their voting laws. The Supreme Court struck down as unconstitutional the formula in Section 4 used to define jurisdictions subject to preclearance, rendering Section 5 mostly inoperable.
Since 1965, the DOJ has been enforcing the preclearance regime in Texas and other jurisdictions to review changes as large as redistricting and as small as moving a polling place. Congress initially enacted the provision for a five-year period, and in 1966 the Supreme Court in South Carolina v. Katzenbach upheld this strong intrusion on state sovereignty against constitutional challenge as justified by the South’s recidivist disenfranchisement of black voters. Congress renewed preclearance each time it expired, sometimes adding new covered jurisdictions, and the Supreme Court continued to uphold Section 5’s constitutionality.
In 2006, Congress renewed Section 5 for another 25 years, but it did not alter Section 4’s coverage formula, which relied upon data mostly from the 1960s. Legal scholars warned that failure to change the coverage formula or otherwise update the Act put it in danger of being struck down by a conservative Supreme Court with a strong view of states’ rights.
In Shelby County, the Supreme Court, splitting 5-4 along ideological lines, held that Congress encroached on states’ 10th Amendment rights to “equal sovereignty” by failing to update the Section 4 formula to account for “current conditions.” It struck Section 4, leaving Section 5 in place for Congress to enact a new coverage formula if desired.
There is much to criticize about Shelby County. Its “equal sovereignty” rationale goes against Congress’s strong constitutional power to enforce the 14th Amendment’s equal protection clause and the 15th Amendment’s bar on racial discrimination in voting. That was the whole point of the Reconstruction Amendments, after all. The court also tried to minimize the importance of its ruling by stating it was “only” striking down Section 4’s coverage formula and not the preclearance provision in Section 5 itself. But polarization in Congress and a sea change among Republicans in recent years against preclearance made Congressional passage of a new coverage formula unlikely. And even if Congress could come up with a new coverage formula, such a formula would be unlikely to satisfy the conservative Justices.
Full Article: Holder’s Texas-Sized Gambit after Voting Act Loss.