The U.S. Department of Justice will take on Texas in the first major voting rights enforcement action since the U.S. Supreme Court gutted a key anti-discrimination provision last month, an aggressive move that faces high hurdles.

Attorney General Eric Holder Jr. announced Thursday that the Justice Department would ask a federal court in Texas to subject that state to a preclearance regime similar to that required by Section 5 of the Voting Rights Act of 1965, one of the most efficient tools for the Justice Department’s fight against discrimination at the polls.

The move, if successful, would once again require Texas to seek Justice Department or judicial approval before making certain electoral changes and could act as a template for similar enforcement efforts in other states.

It was Texas that almost immediately announced after the Supreme Court’s decision in Shelby County, Ala., v. Holder that it would put into effect its new redistricting maps and a controversial voter identification law.

“This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Holder said during the National Urban League annual conference in Philadelphia. “Even as Congress considers updates to the Voting Rights Act in light of the court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected.”

Last month, a 5-4 Supreme Court in Shelby County struck down Section 4 of the VRA, effectively gutting Section 5’s requirement that so-called covered jurisdictions—those with a history of voting discrimination—submit any changes on voting polices and practices to the Justice Department or the federal district court in Washington. Section 4 contained the formula for determining which jurisdictions should be covered by Section 5’s preclearance requirement.

But another section of the act, Section 3, allows the department to try to convince a judge to order a jurisdiction to submit to preclearance. To do so, the Justice Department would again need resources to build a case that proves purposeful discrimination.

Arkansas and New Mexico were among the jurisdictions “bailed in” at one time. William Yeomans, a former acting assistant attorney general and now a professor at American University Washington College of Law, has said: “It’s not easy.”

Holder acknowledged that challenge today. “My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found,” Holder said. “But let me be very clear: these remaining tools are no substitute for legislation that must fill the void left by the Supreme Court’s decision.”

Holder said he would base the action 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.”

Texas Attorney General Greg Abbott, who has clashed with the Justice Department over electoral matters, announced plans to move forward with electoral changes the federal government had blocked under the Voting Rights Act.

“With today’s decision, the state’s voter ID law will take effect immediately,” Abbott said at the time. “Redistricting maps passed by the Legislature may also take effect without approval from the federal government.”

A three-judge panel in San Antonio is considering a challenge to redistricting maps for legislative and congressional seats. A group of civil rights and other advocacy organizations had already asked the San Antonio court and a district court in D.C. where similar litigation is pending to take the step announced by Holder.

The American Civil Liberties Union’s Voting Rights Project and other groups praised Holder’s announcement, as did several Democratic members of Congress.

“This bold request by the Attorney General sends an important message that the Department of Justice will aggressively protect the voting rights of voters of color made vulnerable by the Supreme Court’s devastating ruling last month,” said Ryan Haygood, director of the political participation group at the NAACP Legal Defense and Educational Fund, which defended the Voting Rights Act before the Supreme Court in Shelby County.

Texas members of Congress panned the move. Representative Lamar Smith (R-Texas) called it a continued “vendetta” against Texas. Smith said the Supreme Court’s message to the Justice Department was clear: “Don’t mess with Texas.”

“But Eric Holder and the Justice Department aren’t listening,” Smith said.

DOJ’S OPTIONS

The Justice Department and voting rights groups had two other avenues to pursue discriminatory voting practices after Shelby County: Sections 2 and 3 of the VRA. Under Section 2, individuals and the department may bring lawsuits challenging a voting practice and the burden is on them to prove discrimination. Those suits are lengthy and costly and a jurisdiction often would have another allegedly discriminatory practice in place before the originally challenged practice was struck down. Section 5 was enacted because of the shortcomings of Section 2. Under Section 5, the burden is on the covered jurisdiction to show that its practice does not violate the Constitution.

Holder on Thursday said the department would ask the federal court in San Antonio to bring Texas under preclearance via Section 3(c) of the VRA. Known as the bail-in or pocket-trigger provision, Section 3 has been used rarely, but it authorizes federal courts to place jurisdictions that have violated the 14th and 15th amendments under preclearance. It has been called the pocket trigger because it was designed to target pockets of discrimination.

The bail-in section has been used rarely because most of the offending jurisdictions have been covered by Section 5, said Paul Smith of Jenner & Block. Smith is working with the challengers to the Texas redistricting plans and is a veteran voting rights litigator.

Bail in, he added, “has some features like Section 5 in that you end up with a preclearance process.” But unlike Section 5, he said, “It has to be triggered by a court finding intentional race-based discrimination and deciding this is an appropriate remedy. Another main difference is that preclearance can be done by the Justice Department or the local court that makes that determination. They also can tailor the scope and length of the preclearance obligation as opposed to the very broad scope of Section 5, which includes any change in election law. Preclearance can be much more discrete.”

And Section 3 is a permanent part of the VRA, unlike Section 5, which is temporary and must be reauthorized by Congress every so many years.

Still, intentional discrimination cases are hard to prove, said election law scholar Richard Hasen of the University of California Irvine School of Law. “Depending on how the court fashions the rules of evidence it can be quite tough,” he said.

There is very little case law on how courts are to use Section 3. A 2010 Yale Law Journal article on the pocket trigger notes that the best case is Jeffers v. Clinton, a 1990 Arkansas decision in which a district court listed several factors “such as the frequency and proximity of the constitutional violations, whether the violations are likely to recur, and whether judicial preclearance will deter discrimination.” (“The Voting Rights Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic Preclearance,” by Travis Crum)

But Section 3’s advantage is that it gives the benefits of what Section 5 offered, said Hasen, explaining, “It blocks all voting changes from going into effect and puts the burden back on the covered jurisdiction.”

But, he added, it is not a good substitute for Section 5 in general “because it’s only going to apply in a small subset of cases where the Justice Department musters the resources to try to get bail in and gets enough direct proof of intentional discrimination. Those are tough things.”

The biggest impact of the loss of Section 5, said Hasen, is in local jurisdictions “where small things are done to make it harder for minority voters to vote but hard to prove that was the motivation.”

Since 1975, Section 3 has bailed-in two states, six counties and one city, according to the Yale article. Where Section 3 has been most successful is in getting consent decrees from challenged jurisdictions, Jenner’s Smith noted.

As the Yale article said: “In practical terms, consent decrees lower the threshold of proof required to trigger Section 3, avoiding the evidentiary problems associated with proving intentional discrimination. This saves plaintiffs time and money, allowing the Justice Department and civil rights groups to focus on other suits. Both parties, moreover, share these benefits.”

Edward Blum, head of the Project on Fair Representation, which funded Shelby County’s challenge to the VRA, said the Justice Department has the right to move against Texas under Section 3, but as a result of the Supreme Court’s decision in Shelby County, Texas and other states now will get their “day in court.” Before the high court’s ruling, he added, the department could halt voting changes “on a whim.”

Jenner’s Smith called the department’s announcement “very logical,” adding, “If you think loss of Section 5 will be an important change that affects the ability of the Justice Department to protect civil rights, it seems a very logical and useful step even if you think [Congress] will someday fix the VRA. I think this will be something that some courts will be receptive to.”

Hasen described the department’s move as “pretty aggressive,” and added, “I think it’s going to please opponents of Shelby County. The question at the end of the day is whether it will make a difference for minority voters.”

Contact Marcia Coyle at mcoyle@alm.com and Todd Ruger at truger@alm.com.