By Richard L. Hasen
The DOJ’s move, which will begin with Texas, is made under the Voting Rights Act’s little-used “bail in” provision—and it is risky, both politically and legally. But given the few alternatives to protect minority voters, U.S. Attorney General Eric Holder probably figures the risks are worth taking.
In late June, the U.S. Supreme Court in Shelby County v. Holder stripped the U.S. Department of Justice of a key tool used to protect minority voters. Section 5 of the Voting Rights Act required states and localities with a history of racial discrimination in voting to get approval or preclearance from the DOJ or a three-judge court in Washington D.C. before making any changes in their voting laws.
The Supreme Court struck down as unconstitutional the formula in Section 4 used to define jurisdictions subject to preclearance, rendering Section 5 mostly inoperable.
Since 1965, the DOJ has been enforcing the preclearance regime in Texas and other jurisdictions to review changes as large as redistricting and as small as moving a polling place. Congress initially enacted the provision for a five-year period, and in 1966 the Supreme Court in South Carolina v. Katzenbach upheld this strong intrusion on state sovereignty against constitutional challenge as justified by the South’s recidivist disenfranchisement of black voters. Congress renewed preclearance each time it expired, sometimes adding new covered jurisdictions, and the Supreme Court continued to uphold Section 5’s constitutionality.
In 2006, Congress renewed Section 5 for another 25 years, but it did not alter Section 4’s coverage formula, which relied upon data mostly from the 1960s. Legal scholars warned that failure to change the coverage formula or otherwise update the Act put it in danger of being struck down by a conservative Supreme Court with a strong view of states’ rights.
In Shelby County, the Supreme Court, splitting 5-4 along ideological lines, held that Congress encroached on states’ 10th Amendment rights to “equal sovereignty” by failing to update the Section 4 formula to account for “current conditions.” It struck Section 4, leaving Section 5 in place for Congress to enact a new coverage formula if desired.
There is much to criticize about Shelby County. Its “equal sovereignty” rationale goes against Congress’s strong constitutional power to enforce the 14th Amendment’s equal protection clause and the 15th Amendment’s bar on racial discrimination in voting. That was the whole point of the Reconstruction Amendments, after all. The court also tried to minimize the importance of its ruling by stating it was “only” striking down Section 4’s coverage formula and not the preclearance provision in Section 5 itself. But polarization in Congress and a sea change among Republicans in recent years against preclearance made Congressional passage of a new coverage formula unlikely. And even if Congress could come up with a new coverage formula, such a formula would be unlikely to satisfy the conservative Justices.
I and others had hoped that Congress would respond somehow to the court decision to protect minority voters. But both House and Senate committees held initial hearings last month, and it appears that most Republicans are uninterested in a VRA fix.
This lack of interest freed Holder to take a different tack to try to help minority voters. Little-used Section 3 of the Act provides that when a federal court finds that a state or locality has engaged in intentional racial discrimination in voting in violation of the 14th or 15th Amendments, the court has discretion to order the jurisdiction to be subject to preclearance under Section 5 for a defined period of time.
Holder announced on July 25 that the DOJ was going to ask a court to use Section 3 to “bail in” Texas to the preclearance regime it escaped from in Shelby County. The DOJ is using recent judicial findings that Texas engaged in intentional racial discrimination in redistricting. For example, a three-judge panel in D.C. federal court last year determined that Texas drew black legislators’ districts to cut the “economic guts” out of those districts—making it harder for those legislators to show success in their districts and to fundraise.
Unfortunately, Holder’s recent announcement seems to doom what little chance remained of a congressional VRA fix. “Ain’t gonna happen,” Rep. Joe L. Barton (R-Texas) told Roll Call after Holder’s announcements. Texas Republicans condemned Holder’s move as an “end run” around the Supreme Court—although Shelby County did not mention Section 3 bail in and did not formally strike down Section 5.
Besides the political costs of using Section 3, it is not clear that the strategy will be a legal success. There are jurisdictional questions about whether the request is before the right court. Putting aside jurisdictional issues, bail-in remains within the discretion of the court.
Even if bail-in works for Texas, it is hardly a global substitute for the old Section 5 regime. North Carolina, for example, has now enacted one of the strictest set of voting rules we have seen in decades, rules which the DOJ never would have approved while 40 of North Carolina’s districts were subject to preclearance. But unless someone can prove North Carolina engaged in intentional racial discrimination, it is immune from Section 3 coverage.
Texas bail-in may not look like a great tool compared to the old preclearance regime. But it is not as if DOJ has a lot of other tools to protect minority voters in its toolbox. Holder is going for bail-in because it is better than nothing, and with Congressional inaction, he’s got nothing left to lose.
Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He is also the author of Election Law Blog.