About four years after the Supreme Court took away the government’s strongest authority to protect minority voters’ rights, a backup power under the federal Voting Rights Act – weaker and harder to use – is now being threatened, just as federal courts have begun applying it. At issue now, as it was when the Supreme Court decided the case of Shelby County v. Holder in June 2013, is a form of government supervision of voting rights that goes by the technical term, “pre-clearance.” When operating against a state or local government, that means that officials cannot put any new voting law or procedure – however minor – into effect without first getting approval in Washington, D.C. Three cases now developing in federal courts based in Texas are testing whether the variation of “pre-clearance” will take the place of what the Supreme Court scuttled. And there are already serious challenges facing that prospect, in each of those cases.
Congress created “pre-clearance” in passing the Voting Rights Act of 1965. By then, Congress had grown frustrated over a repeated cycle of passing specific new protections for minority voters, only to find that some state and local governments quickly devised new restrictions on those voters. The response that Congress chose was to streamline federal review of voting laws in areas where racial bias had stubbornly persisted.
No longer would minority voters and civil rights groups have to challenge restrictions, one law at a time in one case at a time. Instead, the burden of proving that a new law was not discriminatory was imposed on the governments that planned to adopt a change in voting. Because of their record of discrimination, those jurisdictions had to ask either the Justice Department or a special federal court in Washington to decide whether to allow the new law to go into effect. Such a law might actually seem to be racially neutral, but that had to be proved.