Following J. Christian Adams’ advice, Texas has stopped waiting for DOJ to decide on whether to preclear Texas’s voter id law and has instead filed suit in Washington, D.C. to get preclearance. The complaint itself is very important and extremely savvy, for reasons that take a bit of explaining.
The Voting Rights Act section 5 prevents states with a history of discrimination from making any changes in their voting laws without first getting approval from DOJ or a three-judge court in D.C. The covered jurisdiction has the burden of proving the law will not have the purpose or effect of making minority voters worse off or the law will not be approved. DOJ recently objected to South Carolina’s similar voter identification law, on grounds that minority voters were less likely than white voters to be able to obtain the requisite voter identification. DOJ has been very slow in acting on Texas’s request for preclearance, but most of us expect DOJ will file an objection to Texas’s law as well.
In a recent Slate piece, I explained how South Carolina might file suit—and expedite it to the Supreme Court—arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty. (In 2009 the Court strongly hinted that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement. Congress did not act, but needs to.) As some evidence South Carolina is considering going down that road, they’ve hired Supreme Court ace lawyer Paul Clement.
Today’s filing by Texas takes a slightly different tack. It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act. First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting. Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem. The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.
The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts. South Carolina may offer the Court the former, and Texas the latter.