Never Mind the Supreme Court, Eric Holder Still Going After State Voting Laws

Attorney General Eric Holder speaks at the National Urban League annual conference on Thursday. (National Journal)

On the face of it, the Supreme Court's decision on the Voting Rights Act would seem to end the process of the government preclearing Southern states to change voting laws. But that doesn't matter to Eric Holder.

The attorney general, not willing to wait for Congress to fill the gaps in the Voting Rights Act left by the Supreme Court, wants to make sure Texas gets permission from the federal government before it changes its voting laws. This move was announced Thursday morning in a speech to the National Urban League in Philadelphia — the first move of what's likely to be many from the Justice Department in order to regain its grasp on states it feels target minorities.

But didn't the Court forbid this type of thing?

Here's what happened: Following the Supreme Court's decision to invalidate Section 4 of the Voting Rights Act — which sets a formula to determine the states and jurisdictions that have a history of discriminatory voting laws that are subject to preclearance from the Justice Department — Holder is using a little-known and rarely used provision in the Voting Rights Act to move forward for the time being.

"This is the department's first action to protect voting rights following the Shelby County decision, but it will not be our last," Holder said on Thursday. "Even as Congress considers updates to the Voting Rights Act in light of the Court's ruling, we plan, in the meantime, to fully utilize the law's remaining sections to subject states to preclearance as necessary. My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found."

It turns out Section 3 of the act may provide the workaround for the gutted Section 4. The Justice Department has always had the authority to take this action under the Voting Rights Act, and it's tried it before. However, since it had the power to block new voting laws under Section 4 previously, Justice rarely used this tool.

Section 3 allows the federal government to target certain states or jurisdictions that have recently been the subject of deliberate discrimination, and use this to require preclearance for any changes to voting laws.

This seems to be the path that Holder and the Justice Department will take in the coming weeks and months before — and if — Congress actually gets its act together and outlines a new map of states and jurisdictions that have a history of passing discriminatory voting laws that unfairly target minorities.

In his remarks, Holder made it clear that the department felt that Texas is intentionally trying to discriminate against Latino voters by moving forward with redistricting. He outlined his case further:

"Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder — as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized — we believe that the state of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices," Holder said.

Some of those states that were previously subjected to preclearance from the Justice Department have passed more restrictive voting laws in recent weeks, including North Carolina. From Bloomberg on Thursday:

The bill in the Republican-controlled North Carolina legislature, which may be passed as early as today, would require that voters present a government-issued photo identification at the polls rather than the current system that also allows for use of student ID cards issued by the state's public universities and community colleges.

The measure also shortens the early-voting period before Election Day, ends same-day registration, and would prohibit high school students from registering before their 18th birthdays.

And in Florida, via Opposing Views:

A Florida federal court dismissed a lawsuit brought by a Hispanic civic group and two naturalized citizens that blocked a voter purge in the state. After the Wednesday ruling, the process of screening suspected non-citizens and removing them from voter rolls will resume.

Texas and Mississippi also went forward with their laws to enact stricter voter ID laws in the aftermath of the Supreme Court decision.

And while Holder expressed some optimism in Congress, saying "this issue transcends partisanship," it is highly unlikely that congressional action will occur any time soon.