For months, Attorney General Eric Holder Jr. has insisted in speeches that the U.S. Department of Justice will remain aggressive in protecting the right to vote no matter how the U.S. Supreme Court ruled in the latest challenge of the Voting Rights Act.
Holder's words will be put to a test after the high court on June 25 struck down a key anti-discrimination provision in federal voting rights law. Last week, Holder said the "decision represents a serious setback for voting rights — and has the potential to negatively affect millions of Americans across the country."
Holder only hinted at just how seriously the justices' ruling in Shelby County v. Holder would wound voting rights enforcement — an effort the attorney general has repeatedly highlighted as among his proudest achievements as the nation's top law enforcement official.
Former government lawyers say the ruling will force the Civil Rights Division into less efficient enforcement paths, potentially causing a resources crisis that could greatly reduce the government's effectiveness.
"It will have massive implications for enforcement," said Skadden, Arps, Slate, Meagher & Flom partner Gregory Craig, who was White House counsel to President Obama in 2009 when the Supreme Court last pondered the constitutionality of the Voting Rights Act. "It would require an enormous increase in resources for the Civil Rights Division to bring the kind of cases the attorney general was talking about."
The Supreme Court in its 5-4 decision voided Section 4 of the act, which contains the formula used to determine when a state or local jurisdiction warrants special scrutiny before it can implement electoral changes. That analysis was the predicate to the Justice Department's Section 5 authority to preview proposed changes in suspect jurisdictions, called preclearance. Chief Justice John Roberts Jr., writing for the majority, said Section 4 was "unconstitutional in light of current conditions." In other words, the chief justice said, times have changed.
Without a fix from Congress, the decision means the Civil Rights Division loses that preclearance function, which is "an incredibly efficient way to deal with discrimination," said William Yeomans, a former acting assistant attorney general and now a professor at American University Washington College of Law.
Instead of covered jurisdictions bringing voting changes to the Justice Department for approval, those same jurisdictions can go ahead and make the changes, said Yeomans, who spent more than two decades litigating and supervising civil rights cases.
Immediately following the ruling, 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 declared. "Redistricting maps passed by the Legislature may also take effect without approval from the federal government."
As an alternative path to enforcement, Main Justice attorneys can pursue cases through Section 2 of the law. Under this provision, the department's lawyers would actively go out to investigate the facts surrounding any electoral discrimination and then try to convince their supervisors to file a lawsuit.
On top of that, the burden of proof under Section 2 of the Voting Rights Act is higher. In a Section 5 action, the covered jurisdiction had to prove — either to the Justice Department or to a trial court — that any changes would not harm one group of voters over another. In a Section 2 action, the Justice Department will have to prove that the jurisdiction's voting-related changes are discriminatory.
"It's a much more labor-intensive and time-consuming process," Yeomans said. "With the same resources, it's going to be difficult to do the same job."
The Justice Department did not respond to questions about the enforcement strategy following the decision. Holder's 2014 budget request includes $5.1 million for 25 new Civil Rights Division lawyers.
Justice Department civil rights lawyers have another possible path forward, Yeomans said. Section 3 of the Voting Rights Act allows the department to try to convince a judge to order a jurisdiction to submit itself to preclearance. Arkansas and New Mexico were among the jurisdictions "bailed in" at one time.
To do so, the Justice Department would again need resources to build a case that proves purposeful discrimination. "It's not easy," Yeomans said.
Alternatively, the voting section of the Civil Rights Division can shift the resources now being used on Section 5 enforcement. There will be a winding-down period while the government withdraws from pending Section 5 actions and notifies jurisdictions with 276 pending preclearance submissions that they are no longer covered, Yeomans said.
For now, Holder said, the Justice Department would remain vigilant. The attorney general said he was "hopeful" Congress would pass a fix to the formula in Section 4 that the Supreme Court struck down this session.
"The Department of Justice will continue to carefully monitor jurisdictions around the country for voting changes that may hamper voting rights," Holder said. "The Department also will work with Congress and other elected and community leaders to formulate potential legislative proposals to address voting rights discrimination — because, on their own, existing statutes cannot totally fill the void left by today's Supreme Court ruling."
Beyond the walls of the Justice Department, there was not a lot of optimism that a partisan Congress would make a fix. "This is a radically different Congress than the one that passed the last extension," said Norman Ornstein, an expert on Congress with the Ameri­can Enterprise Institute. "I think the odds of the short term are very, very slim, and I think the Supreme Court knew that."
Senator Chuck Schumer (D-N.Y.) expressed skepticism following the ruling. "As long as Republicans have a majority in the House and Democrats don't have 60 votes in the Senate, there will be no preclearance," he said.
Senator Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he intends "to take immediate action to ensure that we will have a strong and reconstituted Voting Rights Act that protects against racial discrimination in voting."
Representative Jim Sensenbrenner (R-Wis.), a leader in passing the Voting Rights Act reauthorization in 2006, said he would work to update Section 4. "This is going to take time and will require members from both sides of the aisle to put partisan politics aside and ensure Americans' most sacred right is protected," he said.
But there were also signs of opposition in Congress. Representative Jeff Duncan (R-S.C.), whose state was considered suspect under Section 4, called the ruling a win for fairness.
"The preclearance requirement forced South Carolina to spend millions of dollars to defend a photo identification requirement for voting that had already been ruled constitutional by the U.S. Supreme Court," Duncan said. "The court's ruling will hopefully end the practice of treating states differently and recognizes that we live in 2013, not the 1960s."
Traveling last week in Africa, Obama criticized the court.
"I think that the Supreme Court made a mistake in its ruling, but that decision is now here," Obama said. "I think the Supreme Court didn't recognize the degree to which voter suppression is still a problem around the country, and that it makes sense for us to put in place mechanisms to check practices and procedures that may make it harder for people to vote in those areas where there's been a history in the past of discrimination."
Todd Ruger can be contacted at firstname.lastname@example.org.