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FMG Law Blog Line

“NOT SO FAST”: THE GOVERNMENT PURSUES PRECLEARANCE BY OTHER MEANS IN THE WAKE OF SHELBY COUNTY V. HOLDER

Posted on: August 15th, 2013

By: Peter Munk

In Shelby County v. Holder, the Supreme Court struck down as unconstitutional the preclearance formula found in Section 4 of the Voting Rights Act.  Since 1965, Section 4 had dictated which states or jurisdictions were “covered” under Section 5 of the VRA. Covered jurisdictions were required to seek federal approval for all changes to state voting laws.  Of late, preclearance requirements have been a thorn in the side of states like Texas that have sought to introduce sweeping voter ID laws and redistricting plans in the face of staunch opposition from the Department of Justice.

Needless to say, Texas officials declared victory in the wake of the Shelby County decision, arguing that the decision freed them from the strictures imposed by preclearance.  They may have spoken too soon.

Section 3 of the Voting Rights Act provides that a court finding intentional voter discrimination may not only remedy the violation, but also impose preclearance requirements similar to those found in Section 5.  This process, known as “bail-in”, saw limited use when Section 5 was the primary vehicle for dealing with allegedly misbehaving states.

But with Section 5 hampered, Section 3 finally has its chance to get in the game.  Recently, the Justice Department has asked the Western District of Texas to “impose Section 3(c) coverage on the State of Texas as to all voting changes for a ten-year period.”    The State responded that such a request was an “extreme sovereignty-infringing remedy” that may only be applied “in response to rampant, widespread, recalcitrant discrimination.” The contours of Section 3 are still unknown, so the outcome of the litigation is anyone’s guess.  But whatever the result, it is clear that Section 3 will be an important tool for the government as it seeks to reign in states like North Carolina and Texas that press forward with laws that it deems discriminatory.

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