The U.S. Department of Justice will ask a federal court to require Texas to seek permission before the state can change its election laws, U.S. Attorney General Eric Holder said in a speech to the National Urban League on Thursday.
Holder told the group that the Texas Legislature was found to have intentionally discriminated when it drew congressional and legislative redistricting maps in 2011 and suggested that that evidence should be enough to subject the state to a “bail in” provision in the federal Voting Rights Act.
Texas, like several states with histories of discrimination in voting laws, has been required to seek federal preclearance for its election law changes for decades. A recent U.S. Supreme Court decision freed those jurisdictions from federal review. But the high court left the “bail in” provisions in place, giving the courts a way to oversee changes in law in states where discrimination is recent or current.
The AG's office did not have an immediate response to Holder's remarks. Gov. Rick Perry said the federal government is trying to "weaken Texas' voter integrity laws."
"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," the governor said in a written statement. "This end run around the Supreme Court 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."
After citing a recent case from South Carolina in his speech, Holder turned to Texas.
“Another court cited the Voting Rights Act in blocking a Texas congressional redistricting map that would have discriminated against Latino voters," he said. "And in that ruling, the court noted that the parties ‘provided more evidence of discriminatory intent than we have space, or need, to address here.’”
And he announced his office will file its request with the courts Thursday afternoon and suggested other such actions would follow.
“Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder — as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized — we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,” Holder wrote in his prepared remarks. “This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last.”
The court ruled in an Alabama case, Shelby County v. Holder, that the formulas used to determine whether voting laws should be reviewed are no longer applicable.
"Congress did not use the record it compiled to shape a coverage formula grounded in current conditions," Chief Justice John Roberts wrote in the 5-4 opinion. "It instead re-enacted a formula based on 40-year-old facts having no logical relationship to the present day."
The Texas redistricting case is still open, and lawmakers approved new maps during the first special session earlier this summer. The maps drawn in 2011 got stuck in a Washington, D.C., court and were on appeal to the Supreme Court when it ruled — in an Alabama case — that Texas and other states no longer need to seek preclearance for changes in voting and election laws. Another federal court, in San Antonio, drew maps for use in the 2012 elections while the Washington court was working; the Legislature recently approved those court-drawn maps, with minor changes, for use in the 2014 elections.
The Texas ruling cited by Holder came from the Washington court, and the state’s attorneys now argue that those maps have been replaced and the arguments and rulings against them should fall away, too. Lawyers for the plaintiffs who sued the state over its maps — and now, apparently, the Justice Department’s lawyers — contend the findings of the intent to discriminate should raise the state’s standard of proof.
With preclearance, the state has to prove its laws don’t discriminate before they can take effect. Without it, the burden of proof shifts to opponents of those changes.
The San Antonio court that is hearing challenges to the state maps is collecting briefs in advance of more hearings later this summer.
Texas Attorney General and gubernatorial candidate Greg Abbott filed an appeal to that ruling and separately filed suit in January 2012 against the Department of Justice to have the state’s voter ID law implemented. During a campaign stop in El Paso last week, he reiterated his belief that voter ID will help restore voter integrity.
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