U.S. Attorney General Eric Holder strode onto the stage before the National Urban League on Thursday and announced his intention to take the fight for voting rights — both literally and figuratively — to Texas. The subsequent Republican sputterings and wistful Democratic musings fed the faithful in both parties. Republican leaders, firmly ensconced in power, scolded an intrusive federal government to the delight of the party’s conservative base, while Democrats saw Holder as a defender of the emerging Hispanic vote that would carry the party back to the promised land. But the announcement also gave sustenance to an army of lawyers engaged in what has become a never-ending legal battle over election laws and political map-making.
Holder’s announcement was prompted by last month’s U.S. Supreme Court decision, which effectively removed a vital provision of the landmark 1965 Voting Rights Act (VRA). The provision had required 16 jurisdictions, including several former Confederate states like Texas, to seek pre-clearance from the U.S. Department of Justice (DOJ) before making changes to election laws and redistricting maps. The attorney general called the court’s reasoning in the Shelby County v. Holder case “flawed”, and with little chance that a divided Congress would address the issue, the administration pledged to seek other remedies. Holder announced he would revive legal battles made moot by the high court decision by turning to other provisions in the VRA that allow plaintiffs to present specific evidence of minority disenfranchisement to the courts as a step to pre-clearance.
In Texas, following Holder’s announcement, the DOJ claimed clear evidence of discrimination both in the past and present, and asked a federal court to impose at least 10 years of required pre-clearance. This new approach will be tested — perhaps appropriately given the level of political rhetoric — in a San Antonio federal courtroom just blocks from the famous shrine to Texas liberty, the Alamo, where a three-judge panel has been grappling for over two years with the redrawing of Texas’s congressional and legislative maps following the 2010 census. Holder also pledged to block a Texas voter ID law passed in 2011 that state Attorney General Greg Abbott had green-lighted immediately following the Supreme Court’s Shelby County ruling
By choosing Texas, the largest and most Republican of all the states, the Obama Administration is signaling to its base and key minority constituencies that it is doing “everything possible” to uphold the VRA, says Mark P. Jones, Rice University political scientist. The effort is also a morale-booster for a party lost in the Texas wilderness. After decades of Democratic dominance, the emergence of the Republican Party in Texas in the early 1990s set the stage for a series of political death matches over redistricting. With an ever-strengthening state party, Republican legislators have dominated the political map-making efforts, bolstering Republican numbers in the state legislature and Congress.
The Texas redistricting fight has followed a “pernicious pattern,” says Dallas lawyer Michael Li, whose blog has a loyal following among political junkies and observers of the process. Li points out that the two-decade (and counting) fight has cost the state millions in legal fees and court costs, and has resulted in a raft of redrawn maps and voter confusion. Not to mention the 2005 criminal prosecution of former Republican Congressman Tom DeLay, whose effort to boost Republican ranks led to a conviction on money-laundering charges. (He remains free, as his legal appeal is still pending.)
After last month’s Supreme Court ruling, a shift in legal tactics for the Texas case was expected. Three days before Holder’s speech, the plaintiffs — among them the League of United Latin American Citizens (LULAC,) the National Association for the Advancement of Colored People (NAACP), and the Texas Democratic Party — filed papers in San Antonio urging the court to look at the alternative approach to pre-clearance later laid by Holder. After the attorney general’s speech, the DOJ filed a statement of support with the San Antonio court endorsing the new approach.
But even though insiders saw this coming, that didn’t stop a parade of Texas politicians from voicing their outrage or support of Holder’s efforts. Opponents quickly laid the blame at President Barack Obama’s feet. “Once again, the Obama administration is demonstrating utter contempt for our country’s system of checks and balances, not to mention the U.S. Constitution,” Texas Gov. Rick Perry, who has not always been a vocal supporter of the country’s highest court, said in a statement. “This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process.”
Supporters, including Democratic Congressman Joaquin Castro, twin brother of San Antonio Mayor Julian Castro — the man much-touted as the Democrat who could lead his party back to power at the state level — were delighted at Holder’s move. “Today’s decision by the Department of Justice upholds the rights of all Texans to cast their vote freely,” Congressman Castro said in a statement, adding: “This decision also gives Congress time to come to a consensus over how to move forward and ensure that no American is subject to the narrow and discriminatory agenda of partisan politicians.”
But congressional consensus isn’t expected, most political observers say, given the state of play in Washington. Instead, Holder’s move could give opponents of the VRA cover. They could point to the availability of other approaches to pre-clearance within the law, as detailed by the attorney general, and claim there’s no need to revisit the VRA.
Holder also indicated that he will take aim at the Texas voter ID law, passed by a conservative state legislature along with redistricting maps in 2011. The law calls for ID checks at the polls and provides for state i.d. cards issued by the Texas Department of Public Safety (DPS) for any voter who does not have one of the mandated forms of identification that include a driver’s license or other acceptable photo i.d. The law is based on a similar Indiana law that has passed Supreme Court muster, but opponents point to Texas’ vast geography and the lack of official DPS offices in some parts of the state as a barrier to voting rights. It is an issue that resonates with both Republican and Democratic political base voters.
Abbott, a vocal supporter of the law and the likely Republican candidate for governor, tweeted: “I’ll fight #Obama’s effort to control our elections & I’ll fight against cheating at ballot box.”
After Holder’s announcement, Abbott claimed the U.S. Attorney General was “sowing racial divide.” In an interview with the Dallas Morning News on Thursday, Abbott suggested the plaintiffs in the redistricting lawsuit were biased. “It is racial discrimination against Hispanic Republicans because there were at least four or five Hispanic Republicans that were tossed from office because of the way they drew the lines in order to help Democrats,” Abbott told the News. He also said that the Texas voter ID law is popular, even among Hispanic voters, which isn’t far from the truth, according to Jones, who says that polls do show that voter ID isn’t a huge issue among Texas Hispanics.
But even if the voter ID law does hold, legal observers predict it’s likely to delayed by a court intervention. As for the redistricting, if the three-judge panel decides side-step the new pre-clearance argument and give the current maps — which, with only a few minor changes, reflect maps the panel drew up for the 2012 elections after the 2011 maps were tossed by federal court — the go-ahead, the new approach being pushed by Holder and the Obama Administration is likely to be pursued in other jurisdictions — North Carolina is thought to be next in the crosshairs. Either way, the fight is likely to be long and cumbersome. The old pre-clearance approach was sweeping and broad, but this new “clunky” approach, as labeled by University of California law professor Rick Hasen, has yet to be adjudicated.
Ultimately, the new tactic touted by Attorney General Holder could end up before the Supreme Court. In their filings to the San Antonio panel, attorneys for the state of Texas laid out one argument that may have some resonance with the high court judges. They noted that the Supreme Court justices in the majority in the Shelby County v. Holder case commented that pre-clearance applies only to certain states and might result in the unequal, burdensome treatment of some states over others. “Don’t Mess With Texas” in a nutshell.