Mounting a strong counter-attack to attempts by the Obama administration and others to give federal courts new powers of supervision over Texas voting laws, officials of the Lone Star State have told a three-judge district court in San Antonio that it cannot impose that regime at this stage, or at any point unless there is new proof of “rampant” racial bias in election procedures in the state. In a fifty-four-page filing Monday evening, state officials cited the Supreme Court’s June 25 decision in Shelby County v. Holder, and told the District Court that it “cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.” Preclearance obligations under the Voting Rights Act of 1965, the state contended, can now only be ordered if racial bias in voting in a state rises to the level of the “ever-changing discriminatory machinations that gave rise to the preclearance regime in the first place….Nothing remotely like that has occurred in modern-day Texas.”
The state thus is attempting to turn the new courthouse skirmish over a little-used section of the 1965 law — its Section 3 — into a constitutional battle with high stakes for the future of voting rights. As the two sides have lined up on opposite interpretations of Section 3, there is now a very real prospect that the Supreme Court may one day have to clarify when a state may be required to get approval in Washington before it can put into effect any change in its election laws or methods.
Preclearance is the process by which a state or local government with a demonstrated history of racial bias in its elections is forbidden to enforce any new voting law or procedure, however minor, unless it gets advance approval from the Justice Department or from a federal court in Washington. The preclearance regime is spelled out in the 1965 law’s Section 5. Texas has been under a preclearance obligation since 1975.
However, Texas and any other jurisdiction that has been under Section 5 has now been freed of that, because the Supreme Court in the Shelby County decision struck down the automatic formula (in Section 4) that determined which states and local governments had to obey Section 5. Without the coverage formula in Section 4 still on the books, the only way that Texas or any other state could be ordered back under Section 5 is through the previously quite obscure provision at the center of the new controversy involving Texas: Section 3. That is popularly known as the “bail-in” provision, because it would put under Section 5 a jurisdiction that had been outside of it — as Texas now is.
Full Article: Texas fights new voting supervision : SCOTUSblog.