A reader alerted me to this filing of the state of Texas in the voter id case (particularly pages 13-23), raising an affirmative defense to DOJ’s claims that Texas’s voter id law violates section 2 of the Voting Rights Act and that Texas’s intentional racial discrimination in voting gives the court discretion to cover Texas again under a preclearance regime under section 3 of the Voting Rights Act. Texas argues that section 3 is not appropriate because DOJ is partisan and has applied the Voting Rights Act in an unfair and unconstitutional manner, especially against Texas and other state formerly covered by section 5. Texas attached as an exhibit the Inspector General’s report finding some partisanship at the DOJ under Holder.
DOJ’s response is that what Texas is raising is not an appropriate affirmative defense to liability. From the DOJ motion to strike:
Defendants’ “Affirmative Allegations and Defenses,” however, do not relate to any element of a Section 2 claim or remedy, do not in fact assert any recognized affirmative defenses, and do not allege any cognizable counterclaim. Instead, Defendants merely assert a litany of immaterial, misleading, and inapt critiques of the Department of Justice’s Voting Rights Act enforcement and internal operations. Because Defendants’ “Affirmative Allegations and Defenses” are not tied to any claim or potential remedy pending before this Court—including the core issue of whether SB 14 violates Section 2—and because litigating such immaterial matters will unfairly prejudice the United States at trial, the United States respectfully moves to strike them pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.
Meanwhile, the parties are still fighting over whether Texas gets any emails related to DOJ’s investigation of any voter fraud allegations.
Seems like Texas believes that the best defense is a good offense. But I don’t expect this defense to fly, at least not before the trial court.