Holder lights a fire under Texas’ long-running voting rights case

Posted Thursday, Jul. 25, 2013  comments  Print Reprints

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norman Given that U.S. Attorney General Eric Holder’s remarks Thursday about subjecting Texas election law changes to continued federal oversight were predictable (and predicted here, “Redistricting fight is terribly tangled again,” July 5), why the intense reaction?

Politics, of course, but also because all of this might be called experimental. It shifts the full weight of the federal government to a rarely used part of the 1965 Voting Rights Act, and Texas is the lab rat in the experiment.

Other key parts of the test strategy fell into place earlier this week.

Holder said the Justice Department will ask a three-judge federal court in San Antonio, which has been hearing a Texas voting rights case for more than a year, to extend federal “pre-clearance” in the state for 10 years despite a June 25 Supreme Court ruling that put an end to that requirement.

Local and statewide voting changes in Texas have been subject to federal pre-clearance for four decades. Most recently, the state failed Justice Department and federal court reviews of its 2011 redistricting maps and voter ID law.

Political reaction to Holder’s remarks was predictable. Gov. Rick Perry covered that base:

“Once again, the Obama administration is demonstrating utter contempt for our country’s system of checks and balances, not to mention the U.S. Constitution,” Perry said. Holder’s action “undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process.”

Democrats hailed Holder. State Rep. Chris Turner of Grand Prairie said the attorney general’s plan would battle the state’s “long and unfortunate history of disenfranchising voters.”

The technical background: The Supreme Court struck down a formula in the Voting Rights Act that had been used to determine which states would be subject to pre-clearance. But another part of the act says federal courts can put pre-clearance requirements on jurisdictions where voting discrimination has been found.

That’s what plaintiffs in the San Antonio case now want. They filed briefs on Monday stating their arguments, and Texas has until Aug. 1 to respond. Those arguments are reported on the txredistricting.org blog.

Because this part of the Voting Rights Act has rarely been used, courts don’t really know how to use it. If the U.S. attorney general asks, the law says, a court can require future pre-clearance if it finds violations of constitutional voting rights protections.

Citing a 1990 ruling by the federal court for the Eastern District of Arkansas, minority plaintiffs argue that it is not necessary to prove that discrimination was intentional, evidence can be circumstantial and can include past or present acts in local or state jurisdictions.

That’s a pretty broad brush. But the plaintiffs also cite specifics, including:

• The San Antonio court made preliminary findings of discrimination in the 2011 redistricting.

• In 2006, the Supreme Court said “the mark of intentional discrimination” could be seen in part of a mid-decade redistricting plan drawn up by the Legislature.

• Twelve of the 15 redistricting plans adopted by the Legislature since 1971 “have been found to have been racially discriminatory in effect or intent…”

• The Justice Department cited a “discriminatory purpose” in the 2011 voter ID law, and a three-judge federal panel concluded that the law had a “discriminatory effect.”

In a preliminary response, the state’s lawyers said past conduct is not relevant in this context. They say the 2011 redistricting dispute is irrelevant because the Legislature adopted new maps this year.

There will be more arguments come Aug. 1.

For now, Texans can only watch and reflect on how lab rats feel.

Mike Norman is editorial director of the Star-Telegram. 817-390-7830 Twitter: @mnorman9

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