The glee in Republican-controlled states after the Supreme Court's Voting Rights Act ruling in June may give way to a different feeling for state officials: The crushing weight of a full legal offensive from the U.S. Justice Department.
Attorney General Eric Holder is moving aggressively to renew federal control over Texas elections, even without the crucial legal lever the court eliminated. And Texas might be just the beginning.
The court invalidated Section 5 of the Voting Rights Act, which required places with a history of discrimination to get any elections changes — everything from the location of polling places to voter ID laws — preapproved by a federal court or the Justice Department. All or parts of 16 states, mainly in the South, were bound by the so-called “preclearance” requirement.
In targeting Texas, Holder is relying on a so-called “bail-in” lawsuit, brought under a separate section of the Voting Rights Act, Section 3. That section allows the federal government or citizens to ask a federal judge to require preclearance if they can prove an elections law is intentionally discriminatory.
Voting rights activists are calling on the Justice Department to use Section 3 to target other states, especially those that passed laws requiring voters to show ID or eliminating early voting days after the court ruling. North Carolina, Alabama, Virginia and Pennsylvania — where a state trial over a voter ID law wrapped up this week — all have been mentioned.
“These states are making themselves easy targets,” said Michael McDonald of the United States Elections Project at George Mason University. “The Department of Justice is going to hit every state that they possibly can, at least under the Obama administration.”
If successful, the administration's legal offensive could restore federal power over state election laws and, some say, help stem the election restrictions that have flourished since the Republican wave election of 2010.
How Section 3 Differs
Nevertheless, voting rights advocates and elections law experts don't see “bail-in” lawsuits under Section 3 as a replacement for the coverage the court axed.
“It would be a mistake to suggest that because Section 3 is available we're not worse off,” said Myrna Perez of the Brennan Center at the New York University Law School. “The work of protecting voters is going to be more difficult.”
Most significantly, the “bail-in” suits shift the legal burden of proof. Under Section 5, Congress determined which jurisdictions were subject to preclearance, and states were forced to defend their laws and gain approval from the Justice Department or a federal judge.
“The only people that end up happier are the lawyers,” said Justin Levitt of Loyola Law School in Los Angeles.Justin Levitt of Loyola Law School in Los Angeles.
Plaintiffs filing “bail-in” lawsuits, whether the federal government or private citizens, must prove that a state law is intentionally discriminatory. In Texas, a federal court has already found the redistricting plan at the center of the current lawsuit to be intentionally discriminatory, which likely explains why that state was the first target.
But proving such blatant discrimination elsewhere could be more challenging, a reality apparent in how sparingly the “bail-in” provision has been used. Since 1975, only two states (Arkansas and New Mexico), six counties and one city have been “bailed in.”
A successful “bail-in” result also would be more limited than Section 5 preclearance, because a judge could tailor the ruling. For example, instead of requiring all elections-related changes to be preapproved, a court might apply that standard only to redistricting, or to another specific change.
“Bail-in” claims also are forward-looking, meaning the history of discrimination in some states – Congress relied on 15,000 pages of evidence during its debate over the measure in 2006—won't be as relevant. And in most of the likely top targets for Section 3 lawsuits, the kinds of laws and discrimination that activists might highlight have been blocked for decades by the preclearance requirement the court struck down.
Another limiting factor might be resources: Lawsuits brought under other parts of the Voting Rights Act are already onerous for the Justice Department and private groups. “Bail-in” claims would require even more time, money and effort for both sides.
“The only people that end up happier are the lawyers,” said Justin Levitt of Loyola Law School in Los Angeles. “It will end up more expensive for both defendants and plaintiffs.”
Levitt and others also point out that the federal government and others always had the option to seek a “bail-in” claim, but rarely did so because such suits often are ineffective or inefficient.
“This may be the equivalent of whacking away at the nail with a screwdriver,” Levitt said. “It is a potent tool for sure, but that doesn't mean it's sufficient.”
Critics Cry Foul
Regardless, Holder's offensive has sparked fierce criticism, especially from those who pushed to overturn the Voting Rights Act's preclearance requirement in the first place.
Texas Gov. Rick Perry and Attorney General Greg Abbott blasted the effort shortly after it was announced, labeling it an end-run around the Supreme Court. Alabama Attorney General Luther Strange also criticized the move, even though for now it doesn't affect his state.
The outrage underscores the deep-seated distaste for the power Washington wielded for the past 50 years. It also reflects some state officials' fears that they will have to defend the autonomy they secured from the Supreme Court when it struck down the preclearance requirement.
But as Samuel Bagenstos, a former principal deputy assistant attorney general for civil rights and Michigan University law professor, said, no matter the scope of the Justice Department's efforts or their potential success, it's unlikely to fully reverse the effects of the Supreme Court's ruling.
“The right question to ask is not, ‘Is this going to be the same?'” he said, referring to the law before the court's ruling. “The question is, ‘What are they going to be able to reach?'”