Until June 25th, when the Supreme Court handed down its now infamous decision in Shelby County v. Holder, the entire state of Texas was a "covered" jurisdiction under § 5 of the Voting Rights Act. When a jurisdiction is covered, it may not not make changes to
any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on the date used to determine coverage, until either:
(1) A declaratory judgment is obtained from the U.S. District Court for the District of Columbia that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, or
(2) It has been submitted to the Attorney General and the Attorney General has interposed no objection within a 60-day period following submission.
As the New York Times aptly explained in its headline recently, the outcome in Shelby County has caused formerly covered jurisdictions, mostly in the south, to "Rush to Enact Voting Laws." Naturally, these are not laws that expand access to the franchise.
But the Supreme Court left a window open to allow jurisdictions to be covered through a different mechanism: suits brought under § 3 of the VRA. One group of litigants already involved as Intervenor-Defendants in a suit opposite Texas asked for just this relief in a motion filed with the U.S. District Court for the District of Columbia last week.
Even though the Department of Justice is also a defendant in that suit, it has thus far "indicated that it is not in a position to state a view at this time" on whether or not (a) bail-in is appropriate for Texas or (b) the suit in question is even the appropriate vehicle for such an attempt.
In plain English, VRA § 3 says that if you can show that a jurisdiction has engaged in racially discriminatory practices related to voting, a Federal court can "bail-in" the jurisdiction so that it is "covered" under VRA § 5. A covered jurisdiction cannot modify any of election laws or practices without approval from a Federal court or the Department of Justice.
After the jump I pull out some of the major points made in the motion. I also draw from the motion some of the history of state-wide bail-in under VRA § 3. (Some) legal wonkery follows!
If one Justice on the U.S. Supreme Court had voted differently in Shelby County, there would be very little left to say in this case (Texas v. Holder). In this case, Texas brought suit under § 5 of the VRA for preclearance of its redistricting plans, assuming (correctly) that the Department of Justice would not preclear them. The history of this fight has been well-covered on DKE over the past two years or so, but the result (about which I will have some more words soon) was that Texas lost! However, Texas asked the Supreme Court to review the decision, and in light of Shelby County, the Supreme Court remanded the case to the three judge D.C. Court panel for further proceedings. Essentially, the case was reopened. Based on the original claims and counterclaims made in the suit, the case would probably have to be dismissed as moot. The defendant-intervenors, however, asked instead to amend their original answer to Texas's suit to add a counter-claim (effectively, a law suit of their own). As the motion acknowledges, the case was long past the point where such an amendment would have been allowed as a matter of course. Still, the defendant-intervenors gave the court good reason to allow this one:
the reason for the need to amend the pleading arose with the Supreme Court’s holding in Shelby County . . ., which, for the first time, made the bail-in provisions of Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973(a), applicable in this case. The amendment is not the result of undue delay, bad faith or the previous failure to cure the deficiency; nor is the amendment unduly prejudicial or futile.
§ 3 itself leaves the defendant-intervenors with another problem, however. It is available
in any proceeding instituted by the Attorney General or an aggrieved person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment in any state or political subdivision the court finds that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such a state or political subdivision[.]In the introduction to the motion, defendant-intervenors say "[t]his litigation is an attempt by the United States Attorney General and aggrieved Intervenors to vindicate the voting rights of Texas’ substantial minority population." However, as a formal matter, the D.C. suit is a "proceeding instituted" by the State of Texas against the Attorney General. It will be interesting to see whether this language is brushed aside to allow amendment. One justification to do so would be the fact that a counterclaim is arguably its own "proceeding" for these purposes. Anticipating this problem, the motion argues that
while the action, a declaratory judgment lawsuit filed by the State of Texas, was not “initiated,” per se, by the Attorney General or aggrieved individuals, had the Attorney General and Intervenors not vigorously and affirmatively urged the court to find violations of the Voting Rights Act, this [c]ourt would have likely granted preclearance for the plans . . . . Outside of Section 5 litigation in this [c]ourt, the Attorney General and aggrieved individuals would always be the parties “initiating” claims over constitutional violations, and Congress in 1965 would not have foreseen this particular procedural situation arising. But that does not negate the “broad remedial purpose” that motivated Section 3(c), and it should not be read by this [c]ourt to limit the ability of Texas citizens to avail themselves of this remedy in this case.
As longtime DKE readers know, there is another suit on this subject matter proceeding in a Federal Court in Texas. It was brought under § 2 of the VRA and substantively unaffected by the Shelby County decision. But that panel, for the most part, stayed its proceedings in order to allow the D.C. court to make a decision under § 5. (The court in Texas was responsible for implementing "interim" maps for the 2012 election. The first set of these maps were--astonishingly--rejected by a unanimous U.S. Supreme Court in Perry v. Perez.)
The defendant-intervenors have good reason to prefer making § 3 arguments in the D.C. Court. Put simply, Texas not only lost; it lost badly. As the motion explains,
[the] three-judge [c]ourt unanimously concluded that the State of Texas engaged in intentional discrimination against African-American and Latino citizens in enacting the 2011 State Senate and Congressional redistricting plans . . . . [The] [c]ourt did not make formal findings of intentional discrimination in the State House redistricting plan because it had already concluded that the plan would have a retrogressive effect on minority voters . . . . It did, however, note that it had been presented with substantial evidence that the State House plan was motivated by such impermissible intent . . . . The [c]ourt’s findings of fact detailed numerous intentional actions taken by the state of Texas that discriminated against voters on the basis of race.
These findings, as the motion argues, strongly support bailing-in Texas to require preclearance for a substantial period (the motion requests at least ten years of coverage):
this Court’s findings regarding Texas’ racially discriminatory intent would support a finding that Texas engaged in violations of the Fourteenth and Fifteenth Amendments. Again, the “broad remedial purpose” of the statute warrants an application in the instant circumstances--where voters of color are desperately in need of Section 5’s pre-enforcement review because of Texas’ repeated and stubborn attempts to exclude them from the political process. In short, this Court must eventually ask itself . . . : does the nature of the proof justify the remedy of preclearance . . . [?] The answer in this case is a resounding “yes.”
The entire motion (again, available here) is worth reading and, in my view, ought to be granted. No doubt Texas will respond. The DOJ will also likely offer its views. But I think the defendant-intervenors are correct that Texas will have to live with its failure to "even come close to . . . making out a prima facie case for nondiscrimination" in its redistricting plans.
The motion gives two primary examples of VRA § 3 being used in past litigation to bail in entire states: Arkansas (in a suit over the state's 1981 legislative plans, styled Jeffers v. Clinton; Yes, that Clinton), and New Mexico in 1984 (styled Sanchez v. Anaya--no link for this one). I flag these both because (a) they show that state-wide bail-in is not unprecedented, and (b) Jeffers, the Arkansas example, is cited in order to unpack the purpose and function of § 3.
Per the motion, Jeffers gave § 3 a reading broad enough to bail-in Texas in this case:
[T]he Jeffers court embarked on a thorough analysis of the statute, and concluded that a narrow and “crabbed” reading of the statutory language would be 'inconsistent with its broad remedial purpose . . . .'It is obvious that the motion cites Jeffers with the goal of imposing preclearance on Texas. But it does not take much imagination to think that that the standard from Jeffers would be applicable in at least as many places as were once covered by the VRA § 4 formula overturned in Shelby County. One target might be Shelby County itself--or perhaps all of Alabama.
Plaintiffs’ complaint in Jeffers alleged constitutional and Section 2 violations in the 1981 reapportionment plan for state legislature . . . . The Jeffers court rejected plaintiffs’ Fourteenth and Fifteenth Amendment challenges to the redistricting plan . . . . But plaintiffs pointed to other evidence supporting their 3(c) request . . . . The court noted that at least two previous cases resulted in findings of other constitutional violations in the state . . . . The court also considered other potential constitutional violations identified by plaintiffs: (1) state laws that required a majority (rather than plurality) vote for nomination or election to public office; and (2) local incidents in the state that were motivated by an intent to suppress black political activity . . . .
On the variety of state laws passed to require majority votes, the court concluded that it 'cannot ignore the pattern formed by these enactments . . . .' It further noted that '[t]his series of laws represents a systematic and deliberate attempt to reduce black political opportunity. Such an attempt is plainly unconstitutional . . . .' The court in Jeffers rejected the defendants’ arguments that other constitutional violations, not directly related to apportionment, were not pleaded in the complaint and were otherwise irrelevant to the 3(c) decision before the court . . . . The court acknowledged that plaintiffs were, from the outset, clearly trying to prove a pattern of statutory and constitutional violations, resulting in a reduced opportunity for black voters to participate in the political process, and defendants had a full and adequate opportunity to offer proof on all these issues . . . . The court specifically concluded that '[t]he phrase ‘violations of the fourteenth or fifteenth amendment justifying equitable relief,’ which the statute uses as the triggering condition for preclearance, is not limited at all . . . .''
The Jeffers court also concluded that local violations, in addition to state violations, of the voting guarantees of the Fourteenth and Fifteenth Amendments must be taken into account.
Shelby County was a horrendous decision that, as the Times article linked earlier makes clear, is likely to have a negative effect on voting rights, especially in the south. But even if Congress does not act to pass a revised VRA § 4 formula that the Supreme Court finds constitutional, VRA § 3 may offer the potential to mitigate some of the damage the Court caused when it defanged § 5. The outcome of the motion pending before the panel in D.C. may give us some indication as to how powerful a tool § 3 will be.
(DISCLAIMER: (1) THIS IS NOT LEGAL ADVICE. (2) I AM NOT YOUR LAWYER.)