Why the DOJ picked Texas first

The Justice Department is pushing to restore its oversight of the state's voting laws

By Jillian Rayfield

Published July 25, 2013 9:16PM (EDT)

The Department of Justice is asking a federal court to restore its power to oversee voting laws in Texas, a power that was stripped away by the Supreme Court's June decision striking down a key part of the Voting Rights Act.

“Today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act," Attorney General Eric Holder said in a speech to the National Urban League in Philadelphia.

Under Section 5 of the VRA, states and counties with a history of racial discrimination at the polls are required to get preclearance from the Justice Department before making changes to their voting laws. In a 5-4 decision, the Supreme Court struck down Section 4 of the VRA, which establishes a formula for determining which particular regions are subject to Section 5.

So why did Holder pick Texas?

Though the Court struck down Section 4 of the law, which more or less creates an automatic preclearance requirement, Section 3 of the VRA provides another way to subject particular areas to oversight: If that region was found to have recently discriminated against minorities at the polls, the courts can enforce the preclearance requirement on it for a set time period. This is what's known as the "bail-in" provision of the law.

Texas is a prime target for "bail-in" duty, precisely because last year, in a case called Texas v. Holder, a three-judge panel in a Washington district court found that the state's redistricting maps were racially discriminatory.

"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," Holder said in his speech.

The Associated Press explains:

Last year, a federal court in Washington, D.C., found that Texas lawmakers intentionally discriminated against minorities in drawing political maps and that the state's voter ID law would disenfranchise minority voters. But the Supreme Court decision throwing out part of the Voting Rights Act removed the power of that court to stop those measures from going into effect.

Based on those findings, though, minority groups in San Antonio asked that three-judge panel last month to adopt the findings of the D.C. court and require Texas to submit all proposed changes to voting laws for prior court review. Holder's announcement bolsters the argument by the minority groups by placing the Justice Department firmly on their side.

There are a few ways that this could shake out. One distinct possibility is that if the three-judge panel in Texas agrees with Holder and subjects Texas to the "bail-in" provision, Section 3 of the VRA will wind up before the Supreme Court -- which could potentially result in the end of preclearance in its entirety.

Rick Hasen explains that it also might affect how Congress proceeds with passing a new preclearance formula for the VRA, after the Supreme Court struck down the old one:

DOJ’s move on bail-in is going to be used by opponents of a new coverage formula. As noted above, opponents of a new coverage formula will argue that the bail-in possiblity shows the new coverage formula is no longer necessary (either because Texas’s coverage shows that bail-in is enough, or the Court’s refusal to cover shows that blanket coverage is not necessary, if it is not even required for a state to have engaged in recent racial discrimination in its voting rules like Texas).

AG Holder likely knows this. So I think they’ve made the calculation that nothing serious is going to come out of Congress, so they might as well go for broke on bail-in.

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at jrayfield@salon.com.

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Department Of Justice Eric Holder Racism Redistricting Supreme Court Texas Voting Rights Act