The Longhorns and the Law

President Obama is messing with Texas over the state’s eagerness to change election procedures following the Supreme Court’s dumping of key provisions in the 1965 Voting Rights Act. Or rather his proxy, Attorney General Eric Holder, is doing the messin’: Earlier this week, Holder announced he had asked a U.S. court to force Texas to get approval from the feds before they start overhauling their voting regulations.

That’s because Holder—and Obama—believes Texas’s (and North Carolina’s and Alabama’s) determination to impose tough voter identification laws is nothing more than an attempt to disenfranchise minority voters. Though Texas seems a red state of the most sanguine hue, it has a large Hispanic population that could eventually turn the state blue. Texas’s Hispanics don’t vote in comparable percentages to whites, but pundits largely agree they have the ability to shift the state’s power base, given a demonstrable predilection for Democratic policies.

Last month’s ruling by the Supreme Court (Shelby County v. Holder) quashed the federal stipulation that Texas and eight other mostly southern states obtain permission from either a federal court or the Justice Department prior to changing election rules.

Such “preclearance” requirements had been in effect for decades due to a history of minority voter disenfranchisement in some southern states. But Republicans in Texas (and elsewhere) maintained the 1965 Voting Rights Act was based on 40-year-old data that no longer had relevance. The court agreed with that assessment, and struck down a provision of the act that dealt with the preclearance formula. Within less than a day following the ruling, Texas moved to enforce its rigorous voter ID law.

But Holder said that evidence presented to a court last year demonstrated that the Texas legislature deliberately discriminated against Latinos when it gerrymandered voting district lines in 2011 and 2012. In short, Holder thinks Texas and other southern locales still need oversight, and he intends to pursue that through the sections of the Voting Rights Act that SCOTUS left intact.

But that won’t be easy, said Ana Henderson, until recently the Director of Opportunity and Inclusion at Berkeley Law’s Chief Justice Earl Warren Institute on Law and Social Policy

“[SCOTUS] struck down Section 5 of the act, which requires federal permission before [the affected] jurisdictions can change voting procedures,” Henderson said via phone. “That includes redrawing district lines, imposing voter ID laws, and changing polling places. Holder is attempting to re-impose some federal influence through Section 3, which allows federal oversight of specific jurisdictions where constitutional improprieties occurred.”

The problem from a civil rights perspective is that Section 5 is a big shotgun while Section 3 is more of a small-bore rifle. Entire states—or at least large portions of states—can be covered under Section 5, while Section 3 only allows redress on a narrow, district-by-district basis.

And though people who feel they have endured discrimination can still sue under the act, they may find that justice is long in coming and expensive to boot. “The burden of evidence is now on the litigant,” said Henderson. “Just a single case could take years to resolve, and inevitably will require a great deal of money.”

In summation, says Henderson, “Shelby is an extremely significant decision. It’s not just Texas that’s responding to it—North Carolina is now moving ahead with voter ID rules. If you have a federalist bent, you don’t necessarily consider this a problem. A lot of people feel that Section 3 is adequate to address suppression of voting rights, in that it requires proof of intent.”

And Holder’s determination to re-impose federal oversight notwithstanding, continued Henderson, “It’s up to Congress to fix this formula, and you don’t see a lot of desire for that. At a recent [Senatorial] hearing that was convened following Shelby, several [key] Senators didn’t even show up. It’s just not a priority right now.”

—Glen Martin

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