About four years after the Supreme Court took away the government’s strongest authority to protect minority voters’ rights, a backup power under the federal Voting Rights Act – weaker and harder to use – is now being threatened, just as federal courts have begun applying it.
At issue now, as it was when the Supreme Court decided the case of Shelby County v. Holder in June 2013, is a form of government supervision of voting rights that goes by the technical term, “pre-clearance.” When operating against a state or local government, that means that officials cannot put any new voting law or procedure – however minor – into effect without first getting approval in Washington, D.C.
Three cases now developing in federal courts based in Texas are testing whether the variation of “pre-clearance” will take the place of what the Supreme Court scuttled. And there are already serious challenges facing that prospect, in each of those cases.
Congress created “pre-clearance” in passing the Voting Rights Act of 1965. By then, Congress had grown frustrated over a repeated cycle of passing specific new protections for minority voters, only to find that some state and local governments quickly devised new restrictions on those voters. The response that Congress chose was to streamline federal review of voting laws in areas where racial bias had stubbornly persisted.
No longer would minority voters and civil rights groups have to challenge restrictions, one law at a time in one case at a time. Instead, the burden of proving that a new law was not discriminatory was imposed on the governments that planned to adopt a change in voting. Because of their record of discrimination, those jurisdictions had to ask either the Justice Department or a special federal court in Washington to decide whether to allow the new law to go into effect. Such a law might actually seem to be racially neutral, but that had to be proved.
“Pre-clearance” worked exactly as Congress had hoped: over the decades that it was in operation, it had a major impact on breaking down barriers to minority voting.
But the Supreme Court became convinced in recent years that this form of federal oversight was a deep intrusion into the sovereign power of the states to conduct elections and that, in any event, the formula that had put some states, counties and cities under a pre-clearance duty was found to be out of date.
Finding in the Shelby County case that “times have changed,” the court in its 5-to-4 decision nullified that formula, and, with it, the duty of any jurisdiction to get pre-clearance under the law’s Section 5. The court did not say that Congress could not re-impose a pre-clearance duty under Section 5, provided it wrote a new formula on who would have to submit to that. Congress has not done so, and the political reality seems to be that it simply won’t.
As soon as Section 5 became ineffective, there was a rash of new activity in many states and local jurisdictions, adopting anew or putting into effect previously-stalled restrictions that fell most heavily on minority voters – such as photo ID requirements.
The Shelby County ruling did not disturb another part of the 1965 law – Section 3. That, too, involves a potential pre-clearance duty. Under Section 3, no state, county or city government is automatically required to get pre-clearance to change voting laws. Voters and their lawyers have to challenge each new provision after it was adopted, in separate lawsuits.
If the challengers wanted to have a court strike down such a law under the Constitution, and not just under the Voting Rights Act, they had to prove not only that it actually discriminated against racial or ethnic minorities, but also that it was passed with the specific purpose of discriminating.
If the judge found such an intent, then Section 3 gave the judge the authority to impose the Washington pre-clearance obligation for all future changes in voting in that state or locality, and to do so for a period of years.
Federal judges do not appear to be eager to take that step. For example, a federal appeals court that last summer struck down a series of voting restrictions adopted by the North Carolina state legislature almost as soon as the Supreme Court decided the Shelby County case.
The appeals court ruled that those laws were so severe that they brought back memories of the “Jim Crow era” of deep racial hostility. The court found that the changes were adopted with the specific intent to discriminate against black voters, but it refused to require Section 3 pre-clearance for future North Carolina voting laws. It simply blocked enforcement of the specific laws at issue.
Earlier this year, however, a federal trial judge in Houston, District Judge Lee H. Rosenthal, became the first since the demise of Section 5 pre-clearance to impose Section 3 pre-clearance as a remedy for a discriminatory voting practice. That case involves a shift of the way voters in Pasadena, Texas, elect the members of the city council. Judge Rosenthal, after finding that the change discriminated intentionally against the city’s Hispanic voters, adopted a six-year period of pre-clearance for any future change in voting laws in that locality.
That case has now moved on up to the U.S. Court of Appeals for the Fifth Circuit. And that is where one major threat to Section 3 remedies has arisen. It came in a legal brief filed by the state of Texas last month, supporting an appeal by the city of Pasadena as far as the city is challenging the remedy of Section 3 pre-clearance. That remedy, the state brief asserted, “must be sparingly and cautiously applied.”
The state’s filing argued that “misuse” of that mode of pre-clearance “threatens to re-impose the same unwarranted federal intrusion that Shelby County found could not be justified under the Constitution.” The brief contended that Judge Rosenthal had engaged in such a “misuse” of this provision by imposing it for only a single incident of discrimination – the one-time change in the method of electing the Pasadena city council.
The only circumstance in which a Section 3 pre-clearance remedy is valid, under either the specific language of Section 3, the reasoning of the Supreme Court in 2013, or the Constitution, the Texas brief contended, is when a judge can conclude that the discrimination was “pervasive, flagrant, widespread, and rampant.”
The Fifth Circuit Court has been centrally involved for years in Voting Rights Act cases, because the state of Texas (located in that Circuit) has so often been sued for discrimination in voting. If that court were to read the Section 3 pre-clearance provision in the limited way that the state seeks, that would be a major setback in this legal field.
In two other Texas cases working their way through lower courts, the judges have found intentional race or ethnic bias in voting laws – one in Corpus Christi involving the state of Texas’s very strict voter photo ID requirement, the other in San Antonio involving the boundaries for several election districts for Texas members of the U.S. House of Representatives.
Both of those courts are now considering pre-clearance as a possible remedy, but have not yet imposed it. Both almost certainly will be guided by what the Fifth Circuit Court decides in the Pasadena case about the scope of the Section 3 pre-clearance remedy.
Another threat to the Section 3 remedy arises from the view that the new Trump Administration has already begun to take on enforcement of federal voting rights laws and on the Constitution as it applies to voting. In the voter photo ID case now before a federal trial judge in Corpus Christi, the Trump Justice Department recently dropped its claim that the law involved intentional race discrimination. Minority voters and civil rights groups are still pressing that claim on their own.
Of course, the Justice Department’s view of what constitutes race discrimination in voting will be crucial when any state or local government is ordered to seek pre-clearance, and they will choose to seek it from that Department in the new Administration because that probably would enhance their chances of getting clearance.
Sooner or later, a pre-clearance case under Section 3 is going to reach the Supreme Court, and the Justices would then be in a position to say what that remedy means, and whether its scope is narrowed under the reasoning of the Shelby County decision.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.
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