Election Law

DOJ isn't waiting for Congress to revise voting law; Texas will be preclearance battleground

The U.S. Justice Department isn’t waiting for Congress to revise a preclearance formula in the Voting Rights Act used to determine which jurisdictions have to get advance clearance before making changes to voting practices.

The U.S. Supreme Court struck down the formula in June, but Attorney General Eric Holder said in prepared remarks on Thursday that the Justice Department will rely on other parts of the law to fight state changes that could interfere with voting rights. The Washington Post and the New York Times have stories.

“Even as Congress considers updates to the Voting Rights Act in light of the court’s ruling,” Holder said, “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.”

The Supreme Court ruling in Shelby County v. Holder did not overturn Section 2 of the Voting Rights Act, the permanent, nationwide ban on racial discrimination in voting. It also left intact Section 3, which says that jurisdictions that are found to be discriminating intentionally can be subjected to preclearance requirements. University of California at Irvine law professor Richard Hasen told the Times that the discrimination must be recent for Section 3 to apply, giving it a lesser sweep than the preclearance regime struck down by the Supreme Court.

The DOJ will begin its effort by asking a court to require Texas to get advance approval for voting changes. Holder said the department will rely on evidence that Texas lawmakers intentionally discriminated against Hispanics in a redistricting plan. Hasen told the Times that “getting the state of Texas covered again would be important not just symbolically but practically, as it would put its tough new voter ID law back on hold.”

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