In the first positive signal since U.S. Attorney General Eric Holder announced the U.S. Supreme Court’s recent ruling would not deter him from enforcing the Voting Rights Act, a federal panel ruled Tuesday that the Department of Justice could intervene in a lawsuit to make its case.
In a motion filed two years after a lawsuit over Texas’ redistricting plan was initiated, the Department of Justice argues that Texas’s 2011 redistricting plans were redrawn to hurt minority voting power and had the intended impact. Because the formula that previously designated Texas as an area with a discriminatory history whose voting changes were subject to federal “pre-clearance” was invalidated by the Supreme Court in June, the DOJ can no longer use Section 5 to challenge laws that dilute minority voting, as it did when a federal court blocked Texas’ redistricting map in 2012. As a consequence, within hours of the Supreme Court ruling, Texas Attorney General Greg Abbott moved to reinstate a voter ID law and redistricting map that were previously blocked for discriminating against blacks and Latinos.
Under another section of the Voting Rights Act, Section 3, states can be brought back under the pre-clearance requirement if the court finds new evidence of intentional discrimination. Judges Orlando Luis Garcia, a Clinton nominee, and Xavier Rodriguez, a George W. Bush nominee, agreed with the Justice Department that its new Section 3 claim was timely and appropriate, because it did not become relevant until after the U.S. Supreme Court’s June decision. Their ruling hinted that they would entertain the Section 3 argument, writing, “after Shelby County, circumstances changed significantly, since §3(c) became an issue for the first time.” They noted that the Justice Department should be allowed to intervene because it has a “direct interest in the construction and application of § 3(c) that was not present until after the Shelby County ruling.”
The Judge who dissented, Jerry Smith, was sitting on assignment from the very conservative U.S. Court of Appeals for the Fifth Circuit, where he became famous for partisan questioning of DOJ lawyers during Affordable Care Act arguments about whether President Obama believes in the concept of judicial review. He then ordered the lawyers to write a three-page single-spaced letter explaining what Obama meant when he made a comment about judicial review during a political address. He argued in his dissent that the motion was not timely.
As the majority points out, Section 3 lawsuits have historically been rare and there is little precedent to refer to. The court’s decision allowing DOJ to intervene will, if nothing else, provide guidance on how courts may apply this section and set a precedent for allowing Justice Department intervention in cases post-Shelby.
(HT: Election Law Blog)