he Justice Department announced Thursday that it would sue Texas over its voter ID law, in the wake of a Supreme Court ruling this year that made it easier for states to implement restrictive new voting laws without federal oversight.
In June, the Supreme Court struck down a central piece of the Voting Rights Act that determined which jurisdictions had to receive "preclearance" from the DOJ before making any changes to their voting laws. Following that ruling, Texas and a handful of other states with a history of racial discrimination pushed forward with voting legislation that had previously been blocked by the Justice Department.
"Today's action marks another step forward in the Justice Department's continuing effort to protect the voting rights of all eligible Americans," said Attorney General Eric Holder. "We will not allow the Supreme Court's recent decision to be interpreted as open season for states to pursue measures that suppress voting rights."
The Justice Department had used its preclearance power to block Texas' law, known as SB14, ahead of the 2012 election. The law would require people to prove both U.S. and Texas residency to obtain a voter ID card, a hurdle critics say would be onerous to poor and minority citizens.
But the court nixed Section 4 of the VRA. That piece established a formula to determine which states and localities were automatically required to submit to Section 5, the preclearance provision. The court did not touch Section 5 itself.
This time around, the DOJ said it would argue that SB14 violates a separate piece of the VRA, Section 2, that prohibits voting regulations adopted with the specific purpose of "denying or abridging the right to vote on account of race, color, or membership in a language minority group." The DOJ also said it would argue that the law violates the Fourteenth and Fifteenth Amendments, which guarantee all citizens the right to vote.
By arguing that the law's intent was blatant racial discrimination, the DOJ is seeking a backdoor to a new preclearance authority over Texas.
The DOJ will now ask a judge to "bail-in" Texas under Section 3 of the VRA. Under that little-known, rarely used provision, if a judge determines that a jurisdiction has tried to discriminate on the basis of race, the court can force that jurisdiction to be subject to federal preclearance under Section 5.
That tactic has only been used 18 times in the past, according to the American Prospect, and then typically in much smaller cases involving school districts. As such, "it is not clear that the strategy will be a legal success," Richard Hasen, a U.C. Irvine professor and election law expert, wrote in the National Law Journal.
"Texas bail-in may not look like a great tool compared to the old preclearance regime," he wrote. "But it is not as if DOJ has a lot of other tools to protect minority voters in its toolbox. Holder is going for bail-in because it is better than nothing, and with congressional inaction, he's got nothing left to lose."
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