The Mississippi Legislative Black Caucus is asking U.S. Attorney General Eric Holder to block the state’s plan to start using a voter identification law. “The law adversely affects Mississippi’s most vulnerable population, namely, the elderly, minorities and disabled,” the caucus wrote a letter dated Wednesday and released Thursday. Mississippi Secretary of State Delbert Hosemann says the June 3 federal primaries will be the first time Mississippi voters will be required to show a driver’s license or other form of government-issued photo identification at the polls. Mississippians approved a voter ID constitutional amendment in 2011, and legislators put the mandate into law in 2012.
Martin Luther King Jr. marched famously from Selma, Ala., to Montgomery in March 1965 in a campaign that helped put the Voting Rights Act onto President Lyndon Johnson’s desk. But King didn’t live long enough to witness even the first legislative extension of the act in 1970. In fact, his murder in Memphis happened long before it became clear that the controversial federal law had succeeded, grandly, in protecting black citizens from discriminatory voting policies and practices in the Old South and elsewhere. Although its passage seemed impossible even two years before it was signed, the law was renewed five times by Congress over the next 41 years—the last time, in 2006, with extraordinary bipartisan support. Were King alive today, wizened at the age of 85, it’s likely he would have the same perspective that many of his still-alive-and-kicking civil rights contemporaries have about what the Voting Rights Act accomplished, where it failed and why the U.S. Supreme Court’s renunciation of it last June was so profoundly premature.
A federal judge in Alabama on Monday reinstated federal oversight over the voting practices of a city there, in what election law specialists said was the first such move since the Supreme Court struck down part of the Voting Rights Act in June. Judge Callie V.S. Granade, of Federal District Court in Mobile, used a mechanism in the law that the Supreme Court had left untouched, Section 3, which allows jurisdictions that have intentionally discriminated against minority voters to be “bailed in” to the oversight requirements. Relying on Section 3, Judge Granade ordered the city, Evergreen, to submit some changes in voting procedures to the Department of Justice or a federal court for review before they can go into effect. “This is a major win for the people of Evergreen,” said John K. Tanner, a lawyer for the plaintiffs and a former chief of the Justice Department’s voting section. But he added that piecemeal litigation under Section 3 was no substitute for a general requirement that states and localities designated by Congress be subject to federal oversight.
Texas: Voter identification: Mischief at the polls – How Texas’s new voter-identity law works in practice | The Economist
When Texas passed its new voter-identification law, in 2011, the Republicans who dominate state politics rejoiced. This, they said, would help guarantee “the integrity of state elections”. Nonsense, said Democrats, who accuse Republicans of using voter-ID laws to make it harder for poor people and minorities to vote. Republicans retort that electoral fraud is real. In 2012 Texas’s attorney-general, Greg Abbott, boasted that his office had caught more than 50 cheats between 2002 and 2012. That is not a big number, among the more than 13m registered voters in Texas. But it is not nothing. In November Texans (at least, those with a state-issued photo ID) had their first chance to vote since the law was implemented. The delay was caused by the usual legal wrangling round voter-ID laws. In 2012 a federal court blocked Texas’s law from taking effect. Similarly strict regulations were already in place elsewhere, but under the Voting Rights Act of 1965 Texas was subject to federal “preclearance” on any new voting rules. “Preclearance” is a sort of naughty step for states that, in the past, have hindered voting by minorities. The Texan law was therefore in limbo until June, when the Supreme Court addressed the Voting Rights Act in Shelby County v Holder, a dispute between an Alabama county and the attorney-general of the United States, Eric Holder.
Equal access to the polls is a concept all Texans can hold dear. Which is why all Texans should welcome a Justice Department lawsuit seeking to block voter ID, which a previous panel of judges already found adversely affected minority voters. Our only complaint with the Justice Department complaint is that it does not seek injunctive relief, though this might come later. At the moment, voter ID is still in effect for the Nov. 5 election, early voting for which begins Oct. 21. The Justice Department might reason that federal judges in San Antonio will rule quickly on a separate case involving Texas’ 2011 redistricting maps. But, these judges are being asked to rule on a seldom-used portion of the Voting Rights Act — Section 3(c). A decision might not come quickly enough. Such a ruling would mean that Texas would have to get its voter ID law precleared by a panel of federal judges or the Justice Department. The state would surely appeal.
In one week last August, federal courts found that Texas’ voter ID law and redistricting maps were discriminatory and violated the Voting Rights Act. The Supreme Court’s recent decision invalidating Section 4 of the VRA, which previously covered Texas, tragically wiped away those rulings. Now the Department of Justice is once again stepping in to fight for voting rights in the Lone Star State. The DOJ announced today that it is objecting to Texas’ voter ID law under Section 2 of the VRA and will also seek to join a similar lawsuit against the state’s redistricting maps. Last month, DOJ asked a court in Texas to force the state to approve its voting changes with the federal government for a period of time under another provision of the VRA, Section 3, based on a finding of intentional discrimination in the restricting case. The federal courts found last year that Texas’ new maps for Congress and the state house were “enacted with discriminatory purpose.”
arlier this summer, the U.S. Supreme Court gutted the most potent provision of the Voting Rights Act: Section 5, which had required nine states and a number of individual counties with long histories of voter discrimination to clear any new election law changes with the feds. In the weeks since the decision, voting rights advocates have been searching for new strategies to protect voting rights. And now, in recent days, a previously ignored portion of the Voting Rights Act has become a key tool in the fight. Advocates—as well as Attorney General Eric Holder—are hoping Section 3 will prove to be a powerful tool in the face of an onslaught of voting restrictions from Republican legislatures—and can at least partially replace the much stronger voter protections the Supreme Court took away. Since that Supreme Court decision, the states that had been covered by Section 5 have run roughshod over voting rights. Texas has set about implementing a voter ID law—previously nixed by the DOJ under the Section 5—that would require some people to drive 176 miles round trip on a weekday to get the government-issued photo ID they’ll now need to vote. In Florida, Governor Rick Scott has announced he would re-start a purge of non-citizens from the voter rolls. North Carolina, for its part, passed what is likely the most sweeping set of voting restrictions since the original Voting Rights Act was passed.
Last month Eric Holder, the attorney-general, asked a district court to make Texas “pre-clear” any proposed changes to its election procedures with the federal government. Texas was doing this as a matter of course in every election for the last 40 years: it was subject to Section 5 of the Voting Rights Act (VRA). That section requires jurisdictions with a history of discrimination against minority voters to get approval from either the Justice Department or a federal district court in Washington, DC before changing their election procedures to ensure those changes have “neither discriminatory purpose or effect”. But the Supreme Court’s ruling in Shelby County v Holder last June made Section 5 vestigial. The court found that the formula used to determine which jurisdictions must pre-clear changes was outdated, but it did not, as some VRA opponents had hoped, find Section 5 a violation of the tenth amendment. Hence Mr Holder’s turn to the previously little-used (because little-needed) Section 3 of the VRA, which lets courts mandate pre-clearance for jurisdictions found to be violating the 14th- or 15th-amendment guarantees of equal protection and access to the ballot. In this case, Mr Holder argues, the violation stems from state redistricting plans proposed in 2011—plans that a federal court already rejected, saying that they “provided more evidence of discriminatory intent than [the Court had] space, or need, to address.”
Last week, the State of Texas filed a brief responding to arguments that Texas should be ‘bailed in’ to preclearance coverage under section 3 of the Voting Rights Act. The brief makes any number of technical and procedural arguments, and the courts will have to sort through those in due course. But it’s worth pausing to consider two of the more far-reaching claims in the brief. The first of these is the claim that the Supreme Court’s decision in Shelby Co. means that ‘bail in’ under section 3 is now limited to situations like those that existed in the Deep South in the 1960s and that:
To suggest that Texas has engaged in or will engage in 1960s style ‘common practice of staying one step ahead of the federal courts by passing new discriminatory voting laws’ is absurd on its face.
Now, set aside, for the moment, Texas’ recent history of doing things like trying to re-draw CD-23 – in not one but two successive redistricting cycles – to take away the ability of Hispanic voters to elect their candidate of choice. Or its long record of other Voting Rights Act violations. Instead, stop and ponder this: Texas wasn’t originally subject to preclearance under section 5 of the Voting Rights Act. That’s right. Although it’s sometimes forgotten today, Texas didn’t become covered under section 5 until the 1975 amendments to the Act.
When the Supreme Court dismantled a key provision of the Voting Rights Act last June, there were two small silver linings in this decision. The first was the possibility that Congress could revive the regime killed by the Court, where states with particularly poor records of racialized voter suppression must “preclear” their voting practices with the Justice Department or a federal court before those practices can take effect. The second potential silver lining is Section 3 of the Voting Rights Act, which allows a state to be brought back under the preclearance requirement if a court finds that it engaged in “violations of the fourteenth or fifteenth amendment justifying equitable relief.” Now, however, Texas wants to destroy these two silver linings as well. And there is a fair chance that the conservative Supreme Court will allow them to do so.
Texas escalated a confrontation with the Obama administration this week over the Voting Rights Act, staking out an aggressive new challenge to the landmark 1965 law that could send it back to the Supreme Court for yet another review. “Just a few weeks ago, the Supreme Court invalidated the legislatively imposed preclearance requirement, calling it an ‘extraordinary’ ‘departure from the fundamental principle of equal sovereignty’ of the states,” Attorney General Greg Abbott wrote in a 54-page brief filed this week, in a case about whether the state’s latest redistricting map should be subject to court review before taking effect. “A judicially imposed preclearance requirement is no less extraordinary and no less constitutionally suspect.” Rick Hasen, an election law expert and professor at UC-Irvine, told TPM that the brief is “a signal to DOJ that Texas is not afraid to escalate if necessary, and they may have a receptive audience among the conservative Justices on the Supreme Court.”
Voting Blogs: Texas Ups the Ante in Fight Over Voting Rights Act, Betting on An Emboldened Conservative Supreme Court | Election Law Blog
I recently wrote in NLJ about AG Holder’s Texas-sized gambit: to get Texas covered again under a preclearance regime using section 3 of the Voting Rights Act. It’s a move that is risky both legally and politically, for reasons I explain in the earlier piece and do not repeat here. Still, I was struck by the boldness of the State of Texas filing opposing bail in. Texas made the arguments I expected it to make: about the burden on those seeking preclearance to prove intentional discrimination being high, the inappropriateness of relying upon findings of intentional discrimination in a different court opinion—especially one that has been vacated, etc. (See Lyle Denniston’s summary of Texas’s filing.) But Texas made a bigger argument too, and it one that may make it back to the Supreme Court where, for reasons I will explain, the Court may accept it.
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.”
In recent weeks, civil-rights advocates and legal experts in North Carolina have contemplated a provocative question: Are the state’s Republican lawmakers racist? The answer could determine the future of North Carolina’s voting laws. If a court finds that the state’s lawmakers have engaged in a deliberate attempt to discriminate against minority voters, the federal government could require the state to clear all future election policies with the U.S. Department of Justice or a federal court. That would renew the federal oversight that ended with the Supreme Court’s recent decision to overturn a key provision of the landmark Voting Rights Act. In June, a 5-4 United States Supreme Court majority struck down Section 4 of the Voting Rights Act, a provision that required jurisdictions with extensive histories of discriminating against minorities — including eight states in the South and parts of other states — to get “preclearance” from the DOJ before making changes to their voting policies.
The glee in Republican-controlled states after the Supreme Court’s Voting Rights Act ruling in June may give way to a different feeling for state officials: The crushing weight of a full legal offensive from the U.S. Justice Department. Attorney General Eric Holder is moving aggressively to renew federal control over Texas elections, even without the crucial legal lever the court eliminated. And Texas might be just the beginning. The court invalidated Section 5 of the Voting Rights Act, which required places with a history of discrimination to get any elections changes — everything from the location of polling places to voter ID laws — preapproved by a federal court or the Justice Department. All or parts of 16 states, mainly in the South, were bound by the so-called “preclearance” requirement.
Dusting off a little-used section of the 1965 Voting Rights Act, Attorney General Eric Holder made headlines last week when he asked a federal court in San Antonio to take back control of Texas’s voting rules. The move is thought to be a prelude to a broader battle with Republican states following a landmark Supreme Court ruling that gave GOP regions more autonomy over their election laws. But Mr. Holder’s fight with Texas may not be worth it, at least according to University of California-Irvine law professor Richard Hasen, an electoral law expert who supports tougher voting-rights protections. The best thing that can be said about the Justice Department’s legal strategy is that it’s better than nothing, he said. While the Supreme Court freed nine states and several counties from having to get permission before making changes to voter rules, it left intact Section 3 of the Voting Rights Act. Under that provision, a court can impose special oversight of a jurisdiction. It’s a process known as “bailing in.”
Attorney General Eric Holder has opened what will be an epic battle over whether our country will remain committed to equal rights at the ballot box. In a display of egregious judicial activism in late June, the conservative majority on the Supreme Court gutted the Voting Rights Act. Holder made clear last week he intends to fight back. The struggle will begin in Texas, but it won’t end there. “We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve,” Holder told the National Urban League’s annual conference. He wasn’t exaggerating the stakes. From the moment the Supreme Court threw out Section 4 of the act, which subjected the voting laws in states and jurisdictions with a history of discrimination to Justice Department scrutiny, conservative legislators in those places gleefully signaled their intention to pass laws to make it harder to vote. In addition, Texas reimposed a redistricting map that a federal court had already ruled was discriminatory. These hasty moves were unseemly but entirely predictable, proving that Chief Justice John Roberts’s opinion in the case will become a Magna Carta for voter suppression. Without having to worry about “pre-clearance” from the Justice Department, legislators can go about their business of making it more difficult for voters who would throw them out of office to reach the polls — and of drawing racially gerrymandered districts that prolong their tenure. Justice Ruth Bader Ginsburg understood a logic here that escaped Roberts. “A governing political coalition,” she wrote in her dissent, “has an incentive to prevent changes in the existing balance of voting power.”
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.
On Monday, the parties in the Texas redistricting case in San Antonio had their first opportunity to flesh out positions on the issues courts will have to confront in deciding whether to use the “pocket trigger” in section 3 of the Voting Rights Act to impose preclearance coverage on jurisdictions, like Texas, that are no longer subject to preclearance under section 5. A look at what they said in their briefs. The threshold question, of course, is what exactly does section 3 mean? The statutory text of section 3(c) of the Voting Rights Act says a court can order bail-in in a “proceeding instituted by the [United States] Attorney General or an aggrieved person” if it finds “that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” (emphasis added) The statute, however, is silent as what standards courts should use to decide when such equitable circumstances might exist.
Members of the Congressional Black Caucus (CBC) are seeking to strengthen the Voting Rights Act by making it easier for judges to expand voter protections across the country in response to individual discrimination lawsuits. The effort goes beyond crafting a broad definition of which voters should get extra protection based on regional records of racial discrimination. The move is an indication that some Democrats are hoping to use last month’s Supreme Court decision scrapping the law’s Section 4 coverage formula as an opportunity to bolster other provisions of the landmark civil rights legislation that were left intact by the ruling. Specifically, the lawmakers are taking a close look at revising Section 3, which empowers the court to apply Section 5’s federal “preclearance” requirements to jurisdictions with a history of discriminating against minority voters.
Voting rights activists have seized upon a key provision of the Voting Rights Act in an effort to mitigate the damage done by the Supreme Court earlier this month in the case of Shelby County, Alabama v. Attorney General Eric Holder. According to Adam Serwer at MSNBC.com, the state of Texas may still be subject to the federal government’s approval before it can rearrange voting districts or make changes to election law. In its June 25 decision in the case, Chief Justice John Roberts neutered the historic 1965 Voting Rights Act by deeming that the criteria established in the Act for determining racist states was no longer valid. Section 4 of the Act set forth the requirements to establish that a state has a history of racial discrimination in voting. Section 5 mandated that all the states meeting Section 4′s requirements must get clearance from the federal government (known as “preclearance”) before changing election rules. By invalidating Section 4, Roberts and the Court made Section 5 all but unenforceable.
A frequently made argument by GOP apologists, like Robert Robb of the Arizona Republic, is that Arizona should not be a covered jurisdiction under the Voting Rights Act.
Arizona failed to meet certain criteria in 1972 to get federal approval for any state legislation or procedural changes that could impact voting, which included having low voter turnout and not offering election materials in other languages. Arizona in 1974 implemented bilingual voting, but Congress never removed Arizona from the Section 4 covered jurisdiction formula in subsequent renewals of the Act. “We’re being punished for the past!”
This argument requires one to ignore the fact that Arizona has always had the opportunity to “opt out” of the covered jurisdiction formula if it could adequately demonstrate a clean bill of health for a period of 10 years without any violations for discrimination against voters. A number of jurisdictions have successfully “opted out’ over the years.
Voting rights advocates are testing whether a little-used provision of the Voting Rights Act could limit the damage of the Supreme Court ruling that struck down a key part of the landmark civil rights law. Hours after the Supreme Court’s verdict was announced, representatives for the state of Texas celebrated its demise by announcing that they would move ahead with restrictive voting law changes that will disproportionately disenfranchise minorities. Those changes were previously blocked by the Justice Department, through a part of the Voting Rights Act the forces jurisdictions with a history of discrimination in voting to submit their election law changes to Washington in advance, often referred to as “preclearance,” under Section 5. Preclearance prevented discrimination in advance, rather than relying on drawn out litigation that might not be resolved until long after ballots are cast. Section 4 of the Voting Rights Act, which the high court struck down as unconstitutional, determined which jurisdictions were covered by that requirement. But Section 3 of the Voting Rights Act allows the federal government to subject jurisdictions with recent records of deliberate discrimination to the preclearance requirement. With Congress polarized and unlikely to come together to fix Section 4′s coverage formula, Section 3 could become the primary tool for the Justice Department and voting rights activists seeking to patch the gaping hole left by the Supreme Court’s verdict. Travis Crum, now a clerk for federal judge David S. Tatel, laid out this approach in an article for the Yale Law Journal in 2010, anticipating that the Supreme Court would someday strike down part of the Voting Rights Act. Crum called Section 3 the Voting Rights’ Act’s “secret weapon.”