Attorney General Eric Holder announced on Thursday the first step the Justice Department will take to restore the voting rights gutted by a Supreme Court decision neutering a key prong of the Voting Rights Act. In remarks prepared for the National Urban League’s annual conference, Holder announced 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” — effectively restoring the safeguards against voter suppression in Texas that were stripped by the five Republican justices’ decision in Shelby County v. Holder.
Prior to the justices’ decision in Shelby County, states and counties with a history of racial voter suppression were required to “pre-clear” any new voting laws with the Justice Department or a federal court in D.C. Shelby County essentially shut this pre-clearance regime down by declaring the formula used to determine which states are subject to pre-clearance unconstitutional.
The Republican justices’ decision left another provision of the law intact, however. Under section 3 of the Voting Rights Act, a state can be brought back under the pre-clearance requirement if a court find that “violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” Essentially, states with a recent record of attacks on the constitutional right to be free from race discrimination in voting can be brought back under federal supervision.
As Holder notes in his remarks, Texas is a particularly strong candidate for such federal supervison due to “the evidence of intentional racial discrimination” in Texas that the Justice Department presented to a federal court last year. Among other things, this federal court found that Texas Republicans charged with drawing the states’ legislative maps “consciously replaced many of [a] district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [the district's] Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect” a candiate of their choice.
Section 3 lawsuits, often known as “bail-in” suits, are rare. Since 1975, bail-in has been used to extend the Voting Rights Act to “two states, six counties, and one city.” So the judges deciding whether Texas should once again be subject to federal supervision will have little precedent to guide their decision. Nevertheless, Holder is absolutely correct that Texas is a strong candidate for a bail-in. Just two hours after the Supreme Court neutered much of the Voting Rights Act, Texas Attorney General Greg Abott (R) announced that the state would implement plans that will suppress minority voters.