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.
In a nutshell, Texas argues that even if it is guilty of recent intentional discrimination on the basis of race against minority voters (a point which of course if vigorously denies), it cannot be bailed into a preclearance regime under section 3. Texas argues that the Supreme Court’s recent opinion in Shelby County bars the use of the preclearance regime against it or any state unless the state has engaged in conduct as bad as Southern states did in the 1960s before the Voting Rights Act (e.g., racially discriminatory poll taxes, failure to stop violence against African Americans at the polling place, etc.), such a remedy would be an unconstitutional application of Congress’s powers to enforce the 14th or 15th Amendments. Texas says that Shelby County requires that any remedy be “congruent and proportional”to current racial discrimination, and that a preclearance remedy is too strong even with evidence of current racism unless the racism is “flagrant” and “pervasive.”
To me, this is a clear overreading of Shelby County. … But despite Texas’s overreach, Texas could well find a receptive audience at the Supreme Court. Look at what happened this summer: the Supreme Court struck down a key provision of the Voting Rights Act and little happened. Sure, the Justices took a hit in public opinion among African Americans and liberal voters. But there are no large protests in the streets. There does not even seem to me to be the same general level of public outrage that there was about the Supreme Court’s Citizens United decision from 2010.