A push to fix the Voting Rights Act has stalled in Washington. But a trial taking place this week in a sleepy San Antonio courtroom could help revive the landmark law without Congress lifting a finger. At issue in the case is a redistricting plan approved in 2011 by Texas’s Republican legislature. The Obama administration charges that the plan intentionally discriminated against the state’s soaring Hispanic population in an effort to boost the GOP’s share of seats in Congress and the statehouse. Texas admits the plan was designed to help Republicans—which isn’t illegal—but says it did not aim to target Hispanics. If a three-judge panel rules against Texas, it likely would not affect the state’s congressional district maps, because a federal court has already rejected the original maps and created new ones that are fairer. Instead, the implications would be much bigger—potentially even bolstering voting protections for racial minorities in states across the country.
“What happens in Texas will have consequences around the nation,” said Michael Li, an election lawyer who was based in Dallas until recently, and is now at the Brennan Center for Justice at New York University School of Law. “That’s why a lot of voting rights advocates are watching it closely.”
Here’s why: Justice Department lawyers say Texas’s intentional discrimination means the court should put it back under the system of federal “pre-clearance” for its voting laws that was ended when the Supreme Court invalidated Section 5 of the Voting Rights Act last year in the Shelby County ruling. To make that claim, DOJ cites Section 3 of the law, which allows states to be put under federal supervision if they’re found to have shown deliberate racial bias in their voting system.
Section 3 didn’t get much use while Section 5 was still in effect. But since Shelby, it has emerged as a possible savior for voting rights advocates. One influential 2010 law journal article called it the Voting Rights Act’s “secret weapon.”