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 Departmentstopped 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.