In Going After Texas Voting Policies, Holder Takes John Roberts at His Word

The Supreme Court struck down Section 5 of the Voting Rights Act, but the feds can still demand "preclearance" in states where real discrimination is still occurring.
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U.S. Attorney General Eric Holder discusses the Supreme Court's Voting Rights Act ruling at the Justice Department Wednesday, July 25, 2013. (Jonathan Ernst/Reuters)

"The way to stop discrimination on the basis of race," Chief Justice John Roberts wrote in 2007, "is to stop discriminating on the basis of race." We will now find out whether Roberts's anti-racist rhetoric is serious, or is a code phrase meaning that the era of civil rights is now over by judicial fiat.

On Thursday, Attorney General Eric Holder announced that the Justice Department would ask a federal District Court to require the state of Texas to obtain prior permission before implementing its voter ID and other new voting laws.

As is widely known, the Supreme Court in June gutted Section 5 of the Voting Rights Act--the "preclearance" requirement that obliged states and local governments with long racist histories to obtain advance permission for changes in their voting systems.  Roberts himself wrote the 5-4 opinion. Most news accounts focused on his blithe statement that (in the era of Trayvon Martin and Paula Deen) "our Nation has made great strides," and thus need not suspect Southern state governments of racism.  

But the actual legal rule announced in the opinion was narrower.  The opinion didn't say there could be no preclearance; it said only that the preclearance formula was too old. The jurisdictions covered were selected with reference to events that occurred before 1975.  The formula, Roberts said, focused "on decades-old data relevant to decades-old problems."

The VRA is far more than Section 5, and it is and always was more flexible than the majority suggested.  For one thing, "covered jurisdictions" have always had the opportunity to get out from under the preclearance requirement.  Under Section 4 of the VRA, they could go to court and demonstrate that they have "stop[ped] discriminating on the basis of race" for a period of ten years. As Justice Ginsburg pointed out in her dissent in Shelby County, 200 jurisdictions have successfully "bailed out" of preclearance--with no objection from the federal government. 

Shelby County never sought to bail out. It couldn't show that it had "stopped discriminating on the basis of race," because, well, it hadn't. Among other questionable acts during the previous decade, the county had actually defied the Act, holding a election under a new law for which it did not seek preclearance. Justice Sonia Sotomayor pointed out during oral argument that Shelby County "is the epitome of what caused the passage of this law to begin with," and the county didn't bother to deny it. Rather than expressing remorse for its racist past, it came before the Court more like a sulky teenager complaining he'd been grounded just for stealing the family car a few times: Why am I grounded when other kids aren't? Can't we just forget the whole thing? For all the sternness of its anti-racist language ("any racial discrimination in voting is too much"), the majority handed Junior back the keys without so much as a "you be good now."

What Holder has done will be spun as a "challenge" to the Court. Congressman Lamar Smith of Texas has already produced a statement saying, "the Supreme Court message to the Justice Department was clear - don't mess with Texas. But Eric Holder and the Justice Department aren't listening." Legally, that's nonsense.  The Court explicitly said that jurisdictions could be singled out "on a basis that makes sense in light of current conditions." The DOJ suit makes exactly that claim--current conditions in Texas violate the Constitution.

What is the "opt-in" provision? Although Section 5, the preclearance section, has attracted most attention recently, Section 3 of the Act (codified in 42 U.S.C. § 1973a) permits both the Justice Department and private plaintiffs to challenge election practices in any state or locality.  In such a case, the plaintiffs may be able to prove that the practices they are challenging violate not just the Act, but the Constitution itself--either the Fourteenth Amendment's guarantee of equal protection or the Fifteenth Amendment's bar on racial discrimination in voting.  If the government or the plaintiffs do prove a constitutional violation, Section 3 says, "the court . . . shall retain jurisdiction for such time as it may deem appropriate"--and while it does, the state or local defendants are barred from making changes in voting without approval either of the court or of the Justice Department.

In other words, if a state has violated the Constitution, the court can put it under preclearance--the same requirement imposed by Section 5, but this time not based on "decades-old data" but precisely tailored to "current conditions."  

In order to reimpose preclearance on Texas or anywhere else, the Justice Department will have to prove not only that the state's voting laws harm blacks and Latinos politically but that they are intended to. That's a heavy burden. But there's a familiar stench currently wafting from the South, from the Rio Grande in the Southwest to the Chowan River in North Carolina, as Republican legislators rush to purge voter rolls, impose strict voter ID laws, make it harder to register voters, and do away with early voting.  Voting rights lawyers are thorough and smart. Somewhere in this anti-democratic cesspool, they will find evidence of racism that a federal court can't ignore.  When that happens, a District Judge will feel duty bound to impose preclearance under Section 3.

A Court that truly believes that "the way to stop discrimination on the basis of race is to stop discriminating on the basis of race" could not in good faith ignore evidence of intentional discrimination, not in the "distant" past, but now.  But sadly enough, on this issue at least, the Court's good faith is what is in question. 


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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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