In legal filings this week made in the U.S. Court of Appeals for the Fifth Circuit, the Department of Justice made clear that it opposes bringing Texas’s electoral map-drawing back under the federal oversight of the Voting Rights Act of 1965.
The Voting Rights Act established numerous legal tools to protect the franchise for minority voters. Section 2 of the Act contains a cause of action through which private plaintiffs can prophylactically sue to enforce the statute’s proscription of any voting jurisdiction implementing a “voting qualification or prerequisite to voting or standard, practice, or procedure … in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Section 5 of the Act additionally contains a federal preclearance mechanism by which certain jurisdictions separately specified in Section 4(b) are precluded from making any changes affecting voting without receiving the preapproval of the Department of Justice or the U.S. District Court for the District of Columbia. The 2013 U.S. Supreme Court case of Shelby County v. Holder invalidated Congress’s specific “coverage formula” contained in Section 4(b) of the Act, but left intact the Section 5 preclearance mechanism. Justice Clarence Thomas concurred separately to note that he would have found unconstitutional the entirety of the Section 5 preclearance edifice as well.
Last term, the U.S. Supreme Court decided Abbott v. Perez, a Texas-based case which upheld 10 of the 11 congressional and state House districts being challenged for alleged intentional discrimination against minority voters. That case was a major setback for Texas activist groups seeking to place the Republican-controlled state legislature’s map-drawing under greater federal scrutiny.
And now, following Perez, the Department of Justice is officially taking the legal stance that the federal government does not support placing Texas back under any new congressionally prescribed Section 4(b) “coverage formula” vis-à-vis federal preclearance. The Texas Tribune reports:
In legal filings this week, the Justice Department indicated it would side against the voters of color, civil rights groups and Democratic lawmakers who want a three-judge federal panel in San Antonio to require Texas to seek pre-approval of its legislative and congressional maps, given previous maps that the federal judges ruled discriminatory.
“The United States no longer believes that [federal supervision] is warranted in this case,” federal attorneys said in their filing to the court.
The move by the Department of Justice is a salient marker in the Trump administration’s broader efforts to promote federalism in areas of law that that the Obama administration sought to bring under a national microscope.
The Constitution’s basic structure establishes that voting is a state issue unless and until constitutional amendments and/or statutory dispensations speak directly to the contrary. At the constitutional level, the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments all federalize certain voting rights. At the statutory level, the Voting Rights Act of 1965 was a landmark federalization of voting regulation that had hitherto been relegated to the states.
In the 1966 case of South Carolina v. Katzenbach, the U.S. Supreme Court upheld the Voting Rights Act’s Section 5 preclearance mechanism against constitutional challenge. In 2013’s Shelby County, Chief Justice Roberts began his majority opinion by noting that “[t]he Voting Rights Act of 1965 employed extraordinary measures to address an extraordinary problem.” The Trump administration, this week, has taken a concrete step to signal its concurrence with Chief Justice Roberts’ description of the “extraordinary” nature of a key Voting Rights Act remedy.