The U.S. Department of Justice announced two legal actions that will make Texas the battleground over voter rights enforcement—and the spot where Attorney General Eric Holder Jr. makes a stand for the weakened Voting Rights Act of 1965.
The Justice Department said it will file a new lawsuit against Texas over the state’s voter photo identification law under Section 2 of the VRA. The suit will allege that the state purposely adopted the law to deny or abridge “the right to vote on account of race, color, or membership in a language minority group.”
And the Justice Department will file a motion to intervene in a pending case concerning the state’s new redistricting plans, a move that will allow the government to formally present evidence about the law’s purpose and effect. That second complaint also requests that the court order that Texas be “bailed-in” under Section 3(c) of the VRA, which would require the state to get preclearance from the Justice Department or the federal district court in Washington for such law changes.
Before a U.S. Supreme Court decision in June gutted a key provision of the law, Texas and certain other so-called covered jurisdictions – those with a history of discrimination – needed to get that preclearance under Section 5 of the VRA. Congress would need to pass legislation to fix the law after the 5-4 decision in Shelby County v. Holder, which struck down Section 4 containing the formula for determining which jurisdictions should be covered.
Holder, in a written statement announcing the moves, said the Justice Department would use all available authority to keep fighting aggressively to prevent voter disenfranchisement. Texas announced almost immediately following the Supreme Court’s decision that it would put into effect controversial voter identification law and new redistricting maps.
“We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Holder said. “The department will take action against jurisdictions that attempt to hinder access to the ballot box, no matter where it occurs.”
Some legal experts are already predicting the Section 2 lawsuit will be an uphill battle, much like the Justice Department’s push in July to have a federal court in Texas once again subject that state to a preclearance regime.
Holder is trying whatever he can to make up for the loss of the Voting Rights Act’s preclearance provisions under Shelby County, said Rick Hasen, a professor of law and political science at the University of California at Irvine.
“But thanks to the Supreme Court’s stingy interpretation of Section 2 of the Voting Rights Act, a Section 2 suit on voter ID will be tough to win,” Hasen wrote on his Election Law Blog.
Texas Attorney General Greg Abbott criticized the lawsuits, arguing that voter IDs have nothing to do with race and are free to anyone who needs one. “Eric Holder's outrageous claim that voter ID is a racist plot to disenfranchise minority voters is gutter politics and is offensive to the overwhelming majority of Texans of all races who support this ballot integrity measure,” Abbott said in a written statement.
Senator John Cornyn (R-Texas), for years one of Holder’s biggest critics, immediately criticized the move.
“Facts mean little to a politicized Justice Department bent on inserting itself into the sovereign affairs of Texas and a lame-duck Administration trying to turn our state blue,” Cornyn said in a written statement. “As Texans we reject the notion that the federal government knows what’s best for us. We deserve the freedom to make our own laws and we deserve not to be insulted by a Justice Department committed to scoring cheap political points.”
The federal district court in Washington previously held that Texas had failed to meet its burden of proving that its 2011 redistricting plans and its 2011 voter-identification law were not discriminatory under Section 5 of the VRA, the Justice Department said. The Supreme Court’s decision vacated those rulings.
The NAACP, which represented a group of students from historically black Texas Southern University and Prairie View A&M University in that case, praised the Justice Department’s actions. Students previously could vote in-person using their student identification, but Texas now prohibits the use of such identification for voting although it will allow for the use of a concealed handgun license, the organization said.
“Texas has a deeply disturbing history of brazenly suppressing the votes and voting strength of Black and Latino voters,” said Ryan Haygood, director of the political participation group at the NAACP Legal Defense and Educational Fund. “The voter ID law in Texas is a solution in search of a problem. A Texas voter is more likely to be struck by lightning than to see someone attempt to vote fraudulently at the polls.”
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