The Biggest Aspect of the Texas Case: Texas To Be Covered Again by Section 5 (If Case Stands)

Justin noted a key aspect of the Texas id decision which I want to highlight: “Also extremely important: the court expressly finds intentional discrimination relevant to bail-in under the Voting Rights Act, and says it will consider a bail-in order in the days to come.  If the court indeed follows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.”

Getting Texas and North Carolina covered again under the Bail In provisions of the Voting Rights Act has been a key strategy of the U.S. Justice Department. These are test cases, and it is an extremely high hurdle. Not only does DOJ have to prove the state engaged in intentional racial discrimination in voting, but the court upon so finding still has discretion as to whether to require the state to be subject again to preclearance and to fashion the scope of the order (in terms of time and types of changes subject to preclearance). At the end of the TX order, the judge says there will be a status conference to determine the scope of the preclearance.

If this works, it will be very important because it would mean that a variety of changes, such as voter id laws, registration laws, and redistricting, would again be subject to federal approval (either DOJ or a three judge court in DC).  Preclearance is a big stick for the federal government.

In Shelby County, 4 Justices said that preclearance had to be tied to current conditions to be constitutional. (Justice Thomas would have gotten rid of preclearance even for bail in). 4 Justices believe preclearance even under the old rules is ok. If the TX trial court has made credible findings that Texas has engaged in intentional racial discrimination in voting, even the conservative Justices could agree to preclearance. But that’s no sure bet, and you can be sure that Texas will litigate this question very, very hard.

[UPDATE: A few readers have pointed out that there are differences in the preclearance procedures, including that it would be through a court in Texas and not the DC court.]

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