Last Call For High Stakes Texas Holder 'Em

While the Supreme Court has struck down Section 4 of the Voting Rights Act as overly broad, AG Eric Holder and the Department of Justice still have recourse in Section 3 of the VRA, the so-called "opt-in" clause.  If a Federal court finds that a voting jurisdiction has committed voter suppression, it can, under Section 3, choose to opt that jurisdiction into pre-clearance coverage.

Eric Holder has decided that's what needs to happen with a particular, specific jurisdiction, namely the entire state of Texas.  Lyle Denniston:

Here is the Holder statement on the Section 3 issue:

“Today I am announcing that the Justice Department will ask a federal court in Texas to subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act. This request to ‘bail in’ the state – and require it to obtain ‘pre-approval’ from either the Department or a federal court before implementing future voting changes – is available under the Voting Rights Act when intentional voting discrimination is found. 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.”

A three-judge U.S. District Court in San Antonio is now considering the question of whether to put Texas back under the preclearance requirement in a pending case involving new election districts for the Texas state legislature and for its membership in the House of Representatives. Advocacy groups for minority voters in the state have already asked that court to take that step. Texas, however, has cautioned that court that such a step might raise new constitutional issues, unless the Section 3 provision is used only in quite narrow circumstances.

The advocacy groups have also asked a three-judge district court in Washington to take the same step. That is the court that found flaws in parts of the Texas redistricting maps in the case that the Attorney General mentioned – Texas v. Holder. The Supreme Court sent that case back to the district court to apply the Shelby County decision. The Justice Department is due to file on Friday its views on the Section 3 question in that case. Holder’s remarks presumably mean it will embrace a Section 3 approach in that case, too.

So while voting rights may be damaged, they're not done for yet, folks.  Remember, the three-judge panel last year found Texas had serious, massive problems with its redistricting scheme. Now that the DoJ has to do things the hard way, the battle begins now in earnest.