Some Section 4 states barely waited for the ink to dry on Shelby County v. Holder before launching an all-out attack on voting rights no longer protected by federal preclearance.
North Carolina fired the first salvo by slashing early voting hours, banning same-day voter registration, forbidding college students to register in their university’s precinct, and throwing up nearly-insurmountable barriers for ex-felons to re-enfranchise themselves. Texas proposed a new voter ID bill within hours of the Court’s decision and implemented it shortly thereafter. Florida even announced today that it would resume its widely-condemned purge of voter rolls.
Amidst this assault, something remarkable happened on Monday in a federal district court in Texas. There, the U.S. Department of Justice is attempting to force that state into compliance with Section 5’s preclearance clause by “bailing in” the jurisdiction under Section 3(c) of the Voting Rights Act of 1965, which places sub-federal jurisdictions under Section 5’s preclearance requirement without invoking the now-defunct Section 4. U.S. attorney general Eric Holder’s end run around Section 4’s demise is unlikely to succeed, but it did lead to a fascinating assertion by the state of Texas in its submission to the court. At issue is whether Texas’ original 2011 congressional redistricting map, which had been rejected by federal courts, can be used to “bail in” the state under Section 3(c). The Department of Justice argues that the map, which heavily diluted urban and Hispanic voters, is clear evidence of racial discrimination.
Not so, said the state of Texas. With no small amount of chutzpah, Texas declared in open court that the 2011 congressional redistricting map cannot be used to invoke Section 3(c) because it was designed to discriminate against Democrats, not racial minorities:
DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats. It is perfectly constitutional for a Republican-controlled legislature to make partisan districting decisions, even if there are incidental effects on minority voters who support Democratic candidates. See Hunt v. Cromartie, 526 U.S. 541, 551 (1999) (“[A] jurisdiction may engage in constitutional political gerrymandering, even if it so happens that the most loyal Democrats happen to be black Democrats and even if the State were conscious of that fact.”); League of United Latin Am. Citizens, Council No. 4434 v. Clements, 999 F.2d 831, 854 (5th Cir. 1993) (en banc) (“[Section 2 of the Voting Rights Act] is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats.”). The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.
Honestly like this is sadly rare among public officials these days. State attorney general and future GOP gubernatorial candidate Greg Abbott should be commended for his candid approach to representing the people of Texas in federal court.
Well, some of the people of Texas, at least.