U.S. Opens New Voting Rights Front

Will Section 3 Save the Voting Rights Act?

Forty-eight years ago, President Lyndon Johnson signed the Voting Rights Act of 1965 putting into law the 15th Amendment’s guarantee of the right to vote free from racial discrimination. This country has made significant gains in voting rights since that time due in a large part to the landmark Voting Rights Act. In June, though, a sharply divided U.S. Supreme Court invalidated the coverage formula of Section 5 of the Act ruling that Congress had not taken into account the nation’s racial progress when singling out states for federal oversight. Section 5 of the Act required jurisdictions with significant histories of voter discrimination to “pre-clear,” that is, get federal approval from the Department of Justice (DOJ), for any new voting practices or procedures, and to show that they do not have a discriminatory effect. Within hours of the Supreme Court’s decision, some Southern states began putting in effect voting changes that had been blocked by DOJ and federal courts such as strict voter ID laws and reduction of opportunities for early voting. DOJ had blocked these proposed changes on the grounds that they would disproportionately affect the elderly, and black and Hispanic voters. However, even though DOJ has been deprived of Section 5 by the Supreme Court, it is using the remaining sections of the Voting Rights Act to subject states to preclearance.


The new front was first opened in Texas. Texas civil rights groups and DOJ are seeking federal court intervention to require changes in Texas legislative redistricting maps. DOJ is relying on a rarely used part of the Act, Section 3, which allows the federal government to subject jurisdictions with recent records of deliberate discrimination to the preclearance requirement of Section 5. DOJ had previously relied on an automatic coverage formula (in Section 4) that determined which states and local governments had to obey Section 5. Section 3 is popularly (or un-popularly in some circles) known as the “bail-in” provision, because it would put under Section 5 a jurisdiction that had been outside of it. Texas now is outside of it due to the June Supreme Court decision. In 2011, though, a Federal District Court in Washington had found that the Texas state redistricting maps showed intentional discrimination, such as excluding black and Hispanic lawmakers from the map-drawing process and deliberately drawing districts to minimize the power of minority voters. DOJ has argued that this is evidence of recent discriminatory intent and should trigger the bailing-in of Texas under Section 3.


Lone Star State officials counter-attacked and told a three-judge district court in San Antonio last week that federal courts cannot regain supervision over Texas voting unless there is new proof of “rampant” racial bias in election procedures in the state. Texas Governor Rick Perry has said that the move by DOJ demonstrated “utter contempt for our country’s check and balances, not to mention the U.S. Constitution” and that “This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on out state’s efforts to preserve the integrity of our elections process.” The NY Times Editorial Board wrote that Perry “should be more concerned with reversing Texas’ long run of discriminatory voting laws” (July 27, 2013). It appears very likely that the U.S. Supreme Court may one day have to clarify further when a state is required to get federal approval before it can change any election laws or methods.



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