Voting rights fight goes on

WASHINGTON – The glee in Republican-controlled states after the Supreme Court’s Voting Rights Act ruling in June may give way to a different feeling for state officials: The crushing weight of a full legal offensive from the U.S. Justice Department.

Attorney General Eric Holder is moving aggressively to renew federal control over Texas elections, even without the crucial legal lever the court eliminated. And Texas might be just the beginning.

The court invalidated Section 5 of the Voting Rights Act, which required places with a history of discrimination to get any elections changes – everything from the location of polling places to voter ID laws – preapproved by a federal court or the Justice Department. All or parts of 16 states, mainly in the South, were bound by the so-called “preclearance” requirement.

In targeting Texas, Holder is relying on a so-called “bail-in” lawsuit, brought under a separate section of the Voting Rights Act, Section 3. That section allows the federal government or citizens to ask a federal judge to require preclearance if they can prove a law is intentionally discriminatory.

Voting rights activists are calling on the Justice Department to use Section 3 to target other states, especially those that passed laws requiring voters to show ID or eliminating early voting days after the court ruling. North Carolina, Alabama, Virginia and Pennsylvania – where a state trial over a voter ID law wrapped up last week – all have been mentioned.

“These states are making themselves easy targets,” said Michael McDonald of the United States Elections Project at George Mason University. “The Department of Justice is going to hit every state that they possibly can, at least under the Obama administration.”

If successful, the administration’s legal offensive could restore federal power over state election laws and, some say, help stem the election restrictions that have flourished since the Republican wave election of 2010.

Nevertheless, voting rights advocates and elections law experts don’t see “bail-in” lawsuits under Section 3 as a replacement for the coverage the court axed.

“It would be a mistake to suggest that because Section 3 is available we’re not worse off,” said Myrna Perez of New York University Law School’s Brennan Center. “The work of protecting voters is going to be more difficult.”

Most significantly, the “bail-in” suits shift the legal burden of proof. Under Section 5, Congress determined which jurisdictions were subject to preclearance, and states were forced to defend their laws and gain approval from the Justice Department or a federal judge.

Plaintiffs filing “bail-in” lawsuits must prove that a state law is intentionally discriminatory. In Texas, a federal court has already found the redistricting plan at the center of the current lawsuit to be intentionally discriminatory, which likely explains why that state was the first target.

A successful “bail-in” result also would be more limited than Section 5 preclearance, because a judge could tailor the ruling. For example, instead of requiring all elections-related changes to be preapproved, a court might apply that standard only to redistricting, or to another specific change.