[Headlines from DRJ]
Ten years ago, I wrote about preclearance under the Voting Rights Act:
The Obama Justice Department has rejected Georgia’s voter ID system that requires voters provide Social Security numbers and driver’s license data in order to vote. The rejection letter cites the law’s disproportionate impact on “African-American, Asian and/or Hispanic voters” that burdens their right to vote.
The rejection resulted from a requirement that Georgia obtain “preclearance” of voting changes under the Voting Rights Act of 1965. Georgia and 16 predominantly Southern states, including Texas, are required to get “federal approval before changing election rules because of a history of discriminatory Jim Crow-era voting practices.” Section 5 of the Voting Rights Act of 1965 requires that the local government prove to federal authorities that the voting change is not discriminatory and will not adversely affect minorities.
Then, in 2013:
On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine which jurisdictions are subject to the preclearance requirement of Section 5 of the Voting Rights Act, Shelby County v. Holder, 133 S. Ct. 2612 (2013). The Supreme Court did not rule on the constitutionality of Section 5 itself. The effect of the Shelby County decision is that the jurisdictions identified by the coverage formula in Section 4(b) no longer need to seek preclearance for the new voting changes, unless they are covered by a separate court order entered under Section 3(c) of the Voting Rights Act.
Since then, the only way for a state to be put under federal preclearance was through litigation, i.e., a “separate court order.” Texas had already been sued for discrimination in redistricting, and the litigation continued after the Shelby County decision. In early May 2019, a Texas federal court heard arguments regarding whether Texas would still be subject to preclearance because of past attempted discriminatory redistricting:
A federal judge in San Antonio will hear arguments Thursday over whether Texas should have to clear its political maps with the federal government in 2021.
Any ruling on this question would be a test of a little-known part of the Voting Rights Act, sweeping legislation passed during the civil rights movement.
“This is pretty uncharted territory,” said Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program. “Texas will be the first big test of this, and so it’s something that certainly people around the country are watching closely.”
“The Texas case will be a big test of whether the Voting Rights Act has any teeth after the gutting of Section 5 of the Voting Rights Act,” Li said.
Now a federal court panel has decided Texas is no longer subject to preclearance, at least not because of this pending litigation:
After a yearslong fight over Texas’ political maps, a panel of federal judges on Wednesday denied the requests of voters of color, civil rights groups and Democratic lawmakers to put Texas back under federal supervision of its redistricting.
Although they noted “grave concerns” about Texas’ past conduct, the judges who have overseen the long-winding case against the state ruled that the drastic intervention was not warranted despite previously ruling that state lawmakers discriminated against voters of color when they first drew up new maps in 2011.
Although findings of intentional discrimination against the 2011 maps, which were never used, remained intact, the panel of federal judges said they were bound by the Supreme Court’s opinion that “nothing further remains to be remedied.”
The outcome is a massive loss for those who had hoped that Texas — a repeat offender when it comes to undermining the voting rights of people of color — would be back under federal oversight of its map-drawing ahead of 2021, when lawmakers will have to redraw maps to account for population growth.
Without an appeal to the Supreme Court, the 2021 redistricting cycle could mark the first time in nearly half a century that Texas will be able to implement new legislative and congressional districts without first proving they don’t undercut the electoral power of voters of color.
This may be appealed but it seems the preclearance requirement may be gone unless a court finds a state has engaged in current discriminatory intent or actions.