Texas Ups the Ante in Fight Over Voting Rights Act, Betting on An Emboldened Conservative Supreme Court

I recently wrote in NLJ about AG Holder’s Texas-sized gambit: to get Texas covered again under a preclearance regime using section 3 of the Voting Rights Act. It’s a move that is risky both legally and politically, for reasons I explain in the earlier piece and do not repeat here.

Still, I was struck by the boldness of the State of Texas filing opposing bail in. Texas made the arguments I expected it to make: about the burden on those seeking preclearance to prove intentional discrimination being high, the inappropriateness of relying upon findings of intentional discrimination in a different court opinion—especially one that has been vacated, etc. (See Lyle Denniston’s summary of Texas’s filing.)

But Texas made a bigger argument too, and it one that may make it back to the Supreme Court where, for reasons I will explain, the Court may accept it.

In a nutshell, Texas argues that even if it is guilty of recent intentional discrimination on the basis of race against minority voters (a point which of course if vigorously denies), it cannot be bailed into a preclearance regime under section 3. Texas argues that the Supreme Court’s recent opinion in Shelby County bars the use of the preclearance regime against it or any state unless the state has engaged in conduct as bad as Southern states did in the 1960s before the Voting Rights Act (e.g., racially discriminatory poll taxes, failure to stop violence against African Americans at the polling place, etc.), such a remedy would be an unconstitutional application of Congress’s powers to enforce the 14th or 15th Amendments. Texas says that Shelby County requires that any remedy be “congruent and proportional” to current racial discrimination, and that a preclearance remedy is too strong even with evidence of current racism unless the racism is “flagrant” and “pervasive.”

To me, this is a clear overreading of Shelby County. Recall that in Shelby County the Court majority surprisingly and unjustifiably (given its prominence in NAMUDNO) failed either to apply or reject the “congruence and proportionality test” for Congressional power. I flagged the curious omission the day the opinion issued and wrote about it more in my APSA paper. The Court just sidestepped the issue. And the Court pointedly failed to strike down the preclearance remedy as a whole, leaving Justice Thomas to complain that the majority was delaying the inevitable. That left Section 3 untouched as a legal matter. To say that Shelby County bars the use of preclearance under any circumstances absent proof of flagrant pervasive discrimination is unsupported by any fair reading of the decision itself. This is especially true because section 3 bail-in requires proof of current discrimination, the key point upon which Shelby County struck down the coverage formula of section 4, and it further gives any court asked to approve bail-in the discretion to fashion the extent of the preclearance remedy to match the scope of the state’s violation.

But despite Texas’s overreach, Texas could well find a receptive audience at the Supreme Court.  Look at what happened this summer: the Supreme Court struck down a key provision of the Voting Rights Act and little happened. Sure, the Justices took a hit in public opinion among African Americans and liberal voters. But there are no large protests in the streets. There does not even seem to me to be the same general level of public outrage that there was about the Supreme Court’s Citizens United decision from 2010.

Now there are a number of reasons why we have not seen a public outcry.  The day after Shelby County came the gay rights decisions, which pleased some liberals and diffused some of the anger at the Court. (Some suggested that the Court issued its decisions in this order for this reason.)  Liberal whites seem less angered about this decision than one about money in politics. The public may not be paying attention yet—VRA preclearance is a pretty arcane issue, compared to pointing to Sheldon Adelson or the Koch brothers as convenient poster children for the Citizens United era.

Whatever the reason, the fact that the sky did not fall after Shelby County could lead Justice Kennedy and Chief Justice Roberts to feel comfortable going further—maybe to get rid of preclearance all together (or reject its application to Texas—and if not to Texas then to whom?).  And wait for affirmative action next term, and the coming challenges to Section 2 of the Voting Rights Act, and part of the Civil Rights Act. And once the Roberts Court feels its days are numbered, things may move more quickly.

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