Experts: Texas Possibly Subject to Preclearance Under Voting Rights Act; Suits Filed

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June saw the gutting of the Voting Rights Act (VRA) by the U.S. Supreme Court. The Court collaterally attacked Section 5 of the VRA, which requires preclearance of voting and elections laws by states such as Texas, by striking down Section 4.  By declaring Section 4 unconstitutional, the Court made it impossible to apply the Section 5 preclearance requirement.

Initial reaction focused on the presumptive death of the VRA and the almost certain enactment and implementation of discriminatory voting laws, yet much of that initial analysis neglected Section 3 of the VRA.

To see how Section 3 could save the Voting Rights Act, read below the jump. On Tuesday, Sahil Kapur wrote in TalkingPointsMemo that Texas and other states could still be subjected to preclearance requirements, despite the Court's June ruling.

“Section 3 of the Voting Rights Act lets courts add a state or local government to the preclearance requirement if it is found to have enacted intentionally discriminatory voting measures. The Supreme Court left that part of the Voting Rights Act intact; it invalidated Section 4, which includes the formula that Congress established to determine which state and local governments are to face that extra scrutiny automatically.”

In his Election Law Blog, Prof. Rick Hasen of the University of California Irvine School of Law has reported that several civil rights groups have filed a motion for leave to file an amended answer and counterclaim under section 3(c) of the VRA in the ongoing voting rights litigation in the District Court in Washington, D.C.  The intervenors include the Texas State Conference of Branches of the NAACP, the Texas Legislative Black Caucus, LULAC, Greg Gonzalez, and Wendy Davis.  Their stated aim is to force the court to subject the state of Texas to preclearance requirements under Section 3(c), notwithstanding the recent ruling concerning Sections 4 and 5.  

Hasen characterized the motion as a “BFD” quoting language from the motion itself:

“The State of Texas is undoubtedly the prime example of why at least some pre-enforcement review under the Voting Rights Act is still necessary to vindicate the voting rights of minority citizens. Texas has engaged in persistent and intentional efforts to diminish the voting strength of voters of color, and to exclude them from the political process. If ever a jurisdiction was deserving of being affirmatively subjected to the preclearance requirement (being “bailed-in”) under Section 3(c) of the Act, Texas is that jurisdiction.”

According to Hasen and Kapur, the intervenors' motion is banking on the fact that courts have previously found that the 2011 maps were intentionally discriminatory, and that such a finding mandates that Texas be “bailed in” to the preclearance requirement.

Our friend Michael Li, at the Texas Redistricting blog, has assembled a concise, yet thorough, Q&A on Section 3 in which he answers several nagging questions.

Notably, according to Li, no Section 3 claim has ever been brought before the D.C. Court; rather, Section 3 claims are generally the purview of federal courts in the offended jurisdictions.  The D.C. Court's expertise is in Section 5.

The other notable consideration, according to Li, is that the motion asks for preclearance for statewide laws (i.e.: voter ID, redistricting).  However, as Li is quick to point out, local political bodies (think towns, counties, school boards) would not be covered by this ruling

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