In an earlier post, I noted  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 has now filed a response to DOJ’s motion to strike the affirmative defense. In part, Texas’s response reads:

The United States seeks bail-in and must therefore prove that it is justified. Defendants, in turn, must respond and demonstrate that it is not. See Fed. R. Civ. Pro. 8(b)(1)(A) (“In responding to a pleading, a party must state in short and plain terms its defenses to each claim asserted against it.”). Given the rare and serious nature of bail-in as a remedy, a court weighing its justification should consider all relevant factors, including among other things the manner in which the VRA is enforced by the entity charged with enforcing it. Defendants allege in plain and simple terms that the Voting Section, Civil Rights Division of the Department of Justice enforces the VRA in a partisan and racially discriminatory manner, particularly with regard to voting laws in Texas. See, e.g., ECF No. 417 at 22 (stating that DOJ has declined to use section 2 to challenge similar voter ID laws enacted in eleven other states). Equitable relief under section 3(c) cannot be justified where the body of law under which it exists is enforced inequitably.

Moreover, DOJ’s unequal application of the VRA raises equal protection concerns under the Fourteenth Amendment―concerns that are particularly relevant to a section 3(c) analysis in the wake of Shelby County, where the Supreme Court placed the entire preclearance regime on tenuous constitutional grounds. See Shelby County, 133 S. Ct. at 2620 (holding that the very existence of a “preclearance” requirement raises grave constitutional questions”). Defendants’ allegations and defenses are not offered for nothing; each one of them bears directly on these serious and relevant issues underlying the extraordinary act of bailing-in a State under section 3(c).