DO MESS WITH TEXAS AUGUST 22, 2013
“We will not allow the Supreme Court's recent decision to be interpreted as open season for states to pursue measures that suppress voting rights.”
So wrote Attorney General Eric Holder as he announced that the Department of Justice would sue Texas over its restrictive new voter ID law, and intervene in a lawsuit over the state’s new redistricting plan. Liberals are rejoicing. Texas was one of several states which immediately enacted restrictive voter ID laws after the Supreme Court gutted the portion of the Voting Rights Act that gave the federal government “preclearance,” or approval powers, over Texas’s and certain other states’ voting laws. Holder’s lawsuit represents the next best line of defense against such laws.
But his will be an uphill battle.
Holder is suing Texas under Section 2 of the Voting Rights Act, which gives the federal government the right to sue over voting practices that are intentionally discriminatory. Not only did the Supreme Court leave this section of the law intact, Justice Anthony Kennedy was clear in oral arguments that he felt this provision of the Voting Rights Act would act as a powerful substitute for the preclearance protections the court would go on to strike down.
In June, John Schwartz, writing for the New York Times, explained how Kennedy’s reasoning was broadly flawed: “The decision allows those affected by voting rule changes to sue under Section 2 of the act, but that is a longer and more expensive process that places the burden of proof on those challenging the changes.” In other words, where the pieces of the law the Court struck down prevented discrimination, a Section 2 lawsuit may not be able to right wrongs until after they happen.
Intentional discrimination is also notoriously difficult to prove—not to mention that the accusation itself is politically charged. Worse yet, Section 2 has only ever been successfully applied in redistricting cases. As Richard Hasen wrote in Slate on Monday, after North Carolina’s governor approved one of the nation’s most restrictive voter ID laws:
The court has held that voter identification laws are generally constitutional, with a possible exception for voters who can demonstrate that the law imposes special burdens on them, despite a lack of evidence of impersonation fraud which could justify the law. As for Section 2, the other part of the Voting Rights Act that Justice Kennedy touted as a good substitute for the end of preclearance: there hasn’t been a successful Section 2 challenge to voter ID laws, and outside of redistricting cases the courts have read Section 2 very narrowly.
Separate from his efforts to kill Texas’s voting law, Holder has also bet that he can convince a court to re-impose preclearance on Texas’s redistricting plans. But again, to do so, he faces the practically difficult, politically dicey hurdle of having to prove that any racial discrimination in Texas’s redistricting was on purpose. (Although from maps that show how enormously Texas Republicans diluted minority voting power, it's not hard to see that their redistricting had the effect of disenfranchising their black and Hispanic voters.)
Still, it’s heartening to see that Holder is not letting Texas’s new voting regime pass without a fight—as the fundamentally decent but bureaucratically weak attorney general so often has done in the past when faced with tough battles. In a year’s time, this lawsuit may look like a big whiff. But at least Holder is finally swinging for the fences.
Molly Redden is a New Republic staff writer. Follow her on Twitter @mtredden.