The now-neutralized "preclearance" provision of the Voting Rights Act that allowed the federal government to review proposed election changes in jurisdictions with histories of discrimination has long been an object of scorn in Texas. One of the states subjected to preclearance, Texas was waiting for its day in court to challenge the constitutionality of preclearance under the Act's Section Five provision when the section's coverage formula was thrown out by the U.S. Supreme Court's Shelby v. Holder ruling.
Though SCOTUS did not completely invalidate preclearance with that decision, Texas apparently believes that is exactly what happened.
In rebuttal to a legal challenge requesting that Texas be returned or "bailed in" to preclearance under Section Three of the Voting Rights Act, the state is arguing in a brief filed this week that "the Supreme Court invalidated the ... preclearance requirement." Texas also argues in the brief that there is only a narrow set of terms under which a state can be bailed in under Section Three. According to Texas, those terms are that a state must engage in the "pervasive, flagrant, widespread, and rampant [voter discrimination] that originally justified preclearance in 1965," before the Voting Rights Act became law. In other words, Texas would have to levy poll taxes, make black voters count bubbles in a bar of soap, burn crosses, and reintroduce other classic Jim Crow tactics for it to qualify for bail-in, according to its interpretation.
It's a curious reading, given that Texas didn't come under Voting Rights Act preclearance coverage until 1975 for language discrimination against Latino voters. The criteria for Section Five preclearance evolved since 1965, expanding twice more in 1970 and 1975. But the Section Three "pocket trigger" preclearance criteria is different than the Section Five preclearance criteria. Under Section Three, district courts must find that a jurisdiction intentionally denied voting rights on racial grounds in violation of the 15th Amendment, or that they intentionally diluted votes in violation of the 14th Amendment. It is a permanent fixture in the Act, not a temporary one requiring congressional reauthorization like Section Five.
A court found that Texas engaged in intentional vote dilution in the drawing of the state's 2011 redistricting lines, which was the spark for local parties including the Mexican American Legislative Caucus, the Texas Latino Redistricting Task Force and the Texas NAACP to request preclearance under Section Three. The Department of Justice recently said it would sue to bring the state back into preclearance supervision under that section.
Texas is still in denial about the racist motivations that led Republican lawmakers to draw that 2011 map. The state is arguing that it drew the district boundaries along political and not racial lines, and that they are well within their rights to do that. This is the same argument that Republican state lawmakers in North Carolina have been making in their own redistricting court battles.
But a federal district court stocked with George W. Bush-appointed judges already found a preponderance of racist intentions to dilute black and Latino votes in Texas' 2011 redistricting, and ruled accordingly.
Still, Texas believes it is innocent because, even if intentional racism was found, it's not the kind of flagrant racism exercised by the Ku Klux Klan -- or by lawmakers of the Jim Crow era who would routinely respond to legal challenges by quickly substituting one discriminatory election law for another. "To suggest that Texas has engaged in or will engage in the 1960s style 'common practice of staying one step ahead of the federal courts by passing new discriminatory voting laws' is absurd on its face," the state's brief states.
Texas argues that relief must be equal or proportional to the violation, and that Section Three preclearance is too severe a punishment for drawing an intentionally racist map. As Lyle Denniston at SCOTUSblog observed, Texas is arguing that Section Three "is restricted to jurisdictions with the gravest records of intentional race bias in voting."
If Texas' narrow understanding of Section Three were correct, then the state would have a free pass to engage in "staying one step ahead" of the courts. Michael Li at Texas Redistricting & Election Law wrote that the state's interpretation of Section Three would allow jurisdictions to "avoid bail-in by abandoning a challenged practice at any time up to the moment of final judgment. ... This cycle of discrimination would create the type of gamesmanship the preclearance requirements embodied in both Section 5 and Section 3(c) were designed to end."
Given that Texas has refused to agree to the constitutionality of any kind of preclearance, which it sees as a federal imposition on states' rights, it's likely the state will finally get its day before the Supreme Court to try to finish off what Chief Justice Roberts left standing in the Voting Rights Act.
Speaking of preclearance, another state mentioned as a candidate for bail-in is North Carolina, particularly given the monstrosity of an elections bill passed recently by its General Assembly. But that state faces a much steeper climb to get there.
For one, the elections bill is still awaiting action by Gov. Pat McCrory (R) and thus hasn't yet become law. And while courts found intentional discrimination in Texas' redistricting maps, the same was not found in North Carolina's. In fact, state courts have upheld North Carolina's maps, and the Justice Department precleared them, meaning they found no racially discriminatory impact.
But that doesn't mean that there couldn't be a future finding of intentional racism in the state's pending elections law, according to Keesha Gaskins of the Brennan Center for Justice.
"You have to have a finding of intentional racial discrimination and that hasn't yet been found in North Carolina," said Gaskins. "So you will have a harder time trying to get a Section Three determination there than in Texas."