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.
Late last month, the Justice Department joined a Section 3 lawsuit claiming that federal supervision of Texas’ election practices should be reinstated in light of very recent examples of intentional race discrimination by Texas. Among other things, a federal court found that Texas “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district’s] Anglo citizens.” These, the Justice Department explained, were “violations of the fourteenth or fifteenth amendment” justifying federal supervision.
Texas’ response to the Justice Department does not simply reject the idea that it should be subject to preclearance, it calls upon the courts to declare virtually any preclearance regime unconstitutional. According to Texas, the Supreme Court’s decision hobbling the Voting Rights Act “threw out Congress’s reauthorization of a preclearance regime because the legislative record failed to show ‘anything approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.’” In other words, Texas wants a federal court order saying that any effort to reinstate the Voting Rights Act in Texas is unconstitutional unless Texas transforms into Mississippi at the height of the Jim Crow era.