Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important. The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules. It may be much more important than the ruling on the voter ID law itself. From 1975 through 2013, Texas was one of a number of (mostly Southern) states and jurisdictions which were subject to “preclearance” under Section 5 of the Voting Rights Act. This meant that before Texas could make any changes in its voting rules (such as enacting a voter identification law or passing a new redistricting plan) it had to demonstrate either to the United States Department of Justice or to a three-judge federal court in Washington D.C. that its change was not intended, and would not have the effect, of making minority voters worse off. Texas enacted its voter identification law in 2011, but the Department of Justice believed it was discriminatory, and a three-judge court rejected Texas’s request to implement the law.
In 2013, the United States Supreme Court in the Shelby County v. Holder case held that the preclearance provisions of the Voting Rights Act could not be enforced against Texas or the other covered jurisdictions because the formula (contained in Section 4 of the Act) used to pick who was covered was outdated. The formula was based in part on voter turnout from the 1960s and 1970s. The Court held that such an infringement on state sovereignty could be justified only based on current evidence of racial discrimination in voting. As soon as the Court issued its ruling, Texas announced it intended to enforce its voter ID law, and it faced a new lawsuit.
Importantly, the Supreme Court in striking the Section 4 coverage formula did not also strike Section 5, the preclearance provision itself. (Only Justice Thomas voted to do that.) And Section 3 of the Act provides that a Court could order a jurisdiction “bailed in” to Section 5 preclearance for up to ten years upon proof the jurisdiction engaged in current racially discriminatory conduct in violation of the Constitution.