The same day, last month, that the Supreme Court struck down a key section of the Voting Rights Act, Texas Attorney General Greg Abbott declared that Texas laws that had been stopped by the Act—because courts found them to be discriminatory—would immediately go into effect. On Friday, Attorney General Eric Holder struck back. In the color-blind wish-world of Chief Justice Roberts and his four conservative colleagues on the Supreme Court, Jim Crow-era restrictions on minority voting represent a sad, historical curiosity, unrelated to modern reality. Surveying the landscape from their marble aerie, these five Justices decided in Shelby County v. Holder that requiring the pre-clearance of election-law changes in certain jurisdictions, a provision of Section 4 of the Voting Rights Act, was now unconstitutional. Congress had passed the Act in 1965 in response to the broad denial of the right to vote; as recently as 2006, an overwhelming majority of Congress found that it was still necessary. The Court simply disagreed: “Nearly 50 years later, things have changed dramatically.” The majority Justices cited a newly minted “fundamental principle of equal sovereignty” of states as trumping the need to assure the equal voting rights of minorities. This is consistent with their concern for the rights of entities rather than individuals. So how did states exercise their “equal sovereignty” in response to the Court’s decision? Texas is a clear example. In 2011, the Texas Legislature had approved a state-issued photo-I.D. requirement. A Washington, D.C., court struck the law down, determining that it “imposes strict, unforgiving burdens on the poor and racial minorities in Texas.” With the Supreme Court decision, the law was unstruck and became the law of Texas. Similarly, after Texas redrew political boundaries in 2011, another court found that minority groups “provided more evidence of discriminatory intent than we have space, or need, to address here” and threw the maps out. Now, with the Supreme Court decision, Texas can draw any maps it wants and they are excluded from pre-clearance.
Holder swung back, using a different portion of the Voting Rights Law, Section 3, which permits the United States to seek what’s known as a “bail-in”—a process that places the election laws in jurisdictions under federal oversight on a case-by-case basis if the government can make a showing of recent, intentional discrimination. Holder is seeking a ten year pre-clearance requirement. Section 3 relief is a much less reliable mechanism than the now invalidated Section 4. It allows much greater discretion on the part of the federal courts, requires a much higher evidentiary standard, and permits laws to become effective while decisions are pending, rather than before elections take place. Nevertheless, the Attorney General’s Section 3 initiative is a recognition on the part of the Administration that it will not be able to get legislation through the Congress that would reauthorize pre-clearance; and it nevertheless can and will use available, if less effective, mechanisms to take an aggressive posture in fighting restrictions on voting.
Texas’s story illustrates the folly of the Supreme Court’s rosy view on race. Texas did not wait even a day to impose racially restrictive voter-I.D. laws and extreme racial gerrymandering. Mississippi and Alabama, which had also passed voter-I.D. laws that were subject to pre-clearance, also announced their intention to begin immediate enforcement. On Thursday, the North Carolina legislature passed a law, which not only required government-issued I.D.s, but also shortened early voting, eliminated same-day voter registration during early voting, and allowed any registered voter to challenge another voter’s eligibility.
Full Article: On Voting Rights, Time To Mess With Texas : The New Yorker.