AG Holder to seek ‘bail-in’ of Texas under Section 3 of the Voting Rights Act

Posted by AzBlueMeanie:

The New York Times reports today, Holder
Wants Texas to Clear Voting Changes With the U.S.
:

Attorney General Eric H. Holder Jr. announced on Thursday that the Justice Department would ask a court to require Texas to get permission from the federal government before making voting changes in that state. The move opens a new chapter in the political struggle over election rules after the Supreme Court struck down a portion of the Voting Rights Act last month.

In a speech
before the National Urban League in Philadelphia, Mr. Holder also
indicated that the filing, expected later on Thursday, was most likely
just an opening salvo in a new Obama administration strategy to try to
reimpose “preclearance” requirements in parts of the country that have a
history of discriminating against minority voters.

* * *

“This is the department’s first action to protect voting rights
following the Shelby County decision, but it will not be our last,” Mr.
Holder said. “Even as Congress considers updates to the Voting Rights
Act in light of the court’s ruling, we plan, in the meantime, to fully
utilize the law’s remaining sections to subject states to preclearance
as necessary. My colleagues and I are determined to use every tool at
our disposal to stand against such discrimination wherever it is found.”

The move relies on a part of the Voting Rights Act that the Supreme Court left untouched in the Shelby County case.

* * *

The move by the Justice Department on Thursday relies on a different
part of the law, Section 3, which allows the federal government to get
to largely the same place by a different route, called “bail-in.” If the
department can show that given jurisdictions have committed
constitutional violations, federal courts may impose federal oversight
on those places in piecemeal fashion.

* * *

Lawyers for minority groups have already asked a court in Texas to
return the state to federal oversight. The Justice Department’s action —
filing a “statement of interest” in that case — will bring the weight
of the federal government behind those efforts.

* * *

Richard H. Pildes, a New York University professor who specializes in
election law issues, said the move was “a dramatically significant
moment in the next phase of the Voting Rights Act’s development” after
the Supreme Court’s ruling.

“If this strategy works it will become a way of partially updating the
Voting Rights Act through the courts,” he said. “The Justice Department
is trying to get the courts to step into the role the Justice Department
played before the Shelby County decision. The Voting Rights Act has
always permitted this, in some circumstances, but this strategy wasn’t
used much. If this approach works, it will help update the Voting Rights
Act even without Congressional action.”

According to a 2010 article in The Yale Law Journal
by Travis Crum, then a law student at Yale, Section 3’s bail-in
mechanism “has been applied sparingly” since the Voting Rights Act was
enacted in 1965, with courts ordering coverage of Arkansas, New Mexico,
six counties and one city. The orders sometimes applied only to
particular kinds of voting procedures and set a sunset date for
coverage.

* * *

In his speech, Mr. Holder said that evidence submitted to a court last
year that the Texas Legislature had intentionally discriminated against
Hispanics when redrawing district lines was sufficient to reimpose on
that state the “preclearance” safeguard, noting that the court — in
blocking the map — had said the parties “provided more evidence of
discriminatory intent than we have space, or need, to address here.”

Mr. Holder said, “Based on the evidence of intentional racial
discrimination that was presented last year in the redistricting case,
Texas v. Holder — as well as the history of pervasive voting-related
discrimination against racial minorities that the Supreme Court itself
has recognized — we believe that the State of Texas should be required
to go through a preclearance process whenever it changes its voting laws
and practices.”

The department may also soon bring similar legal action against Texas over its voter identification law, which was also blocked by a federal court last year.

Richard L. Hasen, a professor at the University of California, Irvine,
who specializes in election law, said that the move was a “huge deal
showing that the department is going to be aggressive in seeking to
resurrect what it can of the old preclearance regime” adding that
“getting the state of Texas covered again would be important not just
symbolically but practically, as it would put its tough new voter ID law
back on hold.”

But Professor Hasen added that trying to “bail in” jurisdictions under
Section 3 was not a substitute for Section 5’s comprehensive oversight
requirements for all of the areas it covered. "This is a clunky way to
cover only a subset of jurisdictions found to be intentionally
discriminating — a tough legal standard to prove," he said. “And courts
have discretion to grant or not grant bail-in, and to fashion the remedy
as they see fit.”

* * *

Mr. Holder urged Congress to reimpose the preclearance procedures
generally, saying the Justice Department’s efforts “are no substitute
for legislation that will fill the void left by the Supreme Court’s
decision. This issue transcends partisanship, and we must work together.
We cannot allow the slow unraveling of the progress that so many,
throughout history, have sacrificed so much to achieve.”

Speaking of Rick Hasen's electionlawblog, “Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County”:

Michael Element has posted this (extremely timely) draft on SSRN (forthcoming Yale Law and Policy Review Online).  Here is the abstract:

This short piece analyzes the potential for bail-in suits
under Section 3 of the Voting Rights Act, following the Supreme Court’s
decision in Shelby County v. Holder. The bail-in process allows a
court, upon finding a voting rights violation of the Fourteenth or
Fifteenth amendments, to impose a system similar to the Section 5
preclearance structure on offending states. This piece argues that
voting rights advocates should be cautiously optimistic that Section 3
can fill the void left by the Court’s decision to strike down the
Section 4 preclearance formula. It contends the bail-in provision is
superior to other statutory and policy alternatives for a number of
reasons, namely that it satisfies the constitutional requirements laid
out by the Shelby County Court for supervisory voting legislation; is
immediately available (eliminating the need for statutory change); and,
if utilized, represents the remedial option closest to the previously
enforced Section 5 preclearance structure.

There is also this bit of creative lawyering. Elmendorf and Spencer: “New Tools for ‘Bail In’: Using the Geography of
Discrimination to Reconstruct VRA Preclearance, Judicially”
.

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