Why AG Holder’s Decision to “Bail In” Texas Under the Voting Rights Act is a Big Deal, Legally and Legislatively, Post-Shelby County

Today’s news that the United States Department of Justice will be asking a three-judge federal court in San Antonio to “bail in” Texas for coverage under section 5 of the Voting Rights Act is a big deal on a few fronts. It means that DOJ is going to move aggressively to try to restore what it can of the preclearance regime the Supreme Court effectively gutted in its Shelby County decision. Covering Texas would be a big deal, but it is nowhere near what existed before Shelby County.  If the three-judge court goes along, the issue could well end up back before the Supreme Court, perhaps even this coming term, to possibly kill what remains of preclearance.

It is also a big deal legislatively: no matter what happens with bail-in, it makes the chances of Congress passing a new coverage formula even less than they’ve been. Opponents of a new coverage formula will argue that the bail-in possiblity shows the new coverage formula is no longer necessary (either because Texas’s coverage shows that bail in is enough, or the Court’s refusal to cover shows that blanket coverage is not necessary, if it is not even required for a state to have engaged in recent racial discrimination in its voting rules like Texas).

The rest of this post spells this out in more detail.

Before Shelby County, jurisdictions with a history of racial discrimination in voting (mostly, but not only, in the South) had to get DOJ or federal court permission before making any changes in their voting rules or practices—anything as big as redistricting and anything as small as moving a polling place across the street. In Shelby County, the Court said that the formula used to decide which jurisdictions had to be covered under the preclearance regime was unconstitutional.  (Its reasoning was convoluted, but essentially this exceeded congress’s 15th amendment power and violated the Tenth Amendment’s protection of state sovereignty because the coverage formula was not tied to current conditions in the states.)

The effect of the Shelby County ruling has been immediate.  I just wrote yesterday in The Daily Beast about how North Carolina is poised to enact some of the very toughest voting laws in the country–laws which never would have gotten preclearance before Shelby County (40 of North Carolina’s counties are covered by the Act).  Florida is now restarting its vote purges and Texas wants to get its very strict voter id law in place for the next election—a law that a lower court had blocked under Section 5.

What AG Holder did today was seek to take advantage of section 3 of the Voting Rights Act, the so called “bail in” or “pocket trigger” provision.  Here’s the standard:

If in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any state or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such a state or political subdivision, the court, in addition to such relief as it may grant, shall retain jurisdiction for such a period as it may deem appropriate and during such period no voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect at the time the proceeding was commenced shall be enforced unless and until the court finds that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the voting guarantees set forth in section 1973b(f)(2) of this title: Provided, that such qualification, prerequisite, standard, practice, or procedure may be enforced if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, except that neither the court’s finding nor the Attorney General’s failure to object shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice or procedure.

 Travis Crum has a great Yale LJ note spelling this all out. The point is that there has to be a finding of intentional discrimination to allow for bail in (although Crum has proposed a broader effects test, one which raises some constitutional issues). So there’s no way this is a substitute for section. Section 5 applied to all jurisdictions which were covered for all voting changes. This is a clunky way to cover only a subset of jurisdictions found to be intentionally discriminating—a tough legal standard to prove.  And courts have discretion to grant or not grant bail-in, and to fashion the remedy as it sees fit.  With lots of the worst racial discrimination in voting taking place on the local level, bail-in is no substitute for the old preclearance regime.

But bail-in is a lot better than nothing. It could stop Texas’s very tough voter id law, which would require people without id to travel up to 125 miles each way at their own expense to get an id.  Student ids are not allowed but concealed weapons permits are.  You get the idea.

DOJ doing this shows it will be aggressive in enforcing voting rights.  But if DOJ gets bail in, it seems pretty clear, as Lyle Denniston has shown, that Texas will attack this in court, likely ending up at the U.S. Supreme Court if the lower court grants bail in. It will be an interesting choice for Justice Kennedy as to what to do in a case where equal sovereignty is violated, but upon proof of intentional discrimination in voting.

Which brings us to Congress. I had believed that there was a window where Republicans in Congress, seeing public reaction against the Shelby County case, would want to do something to fix the Voting Rights Act to appeal to Latino voters. The House and Senate hearings last week made me much more pessimistic that Republicans are poised to do anything to create a new coverage formula and preclearance regime.

DOJ’s move on bail-in is going to be used by opponents of a new coverage formula. As noted above, opponents of a new coverage formula will argue that the bail-in possiblity shows the new coverage formula is no longer necessary (either because Texas’s coverage shows that bail in is enough, or the Court’s refusal to cover shows that blanket coverage is not necessary, if it is not even required for a state to have engaged in recent racial discrimination in its voting rules like Texas).

AG Holder likely knows this. So I think they’ve made the calculation that nothing serious is going to come out of Congress, so they might as well go for broke on bail-in.

This will be an interesting few months. You can watch all the twists and turns in the Texas bail in matter at Texas Redistricting.  And I’ll have broader coverage and commentary here.

 

 

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