Posted by AzBlueMeanie:
Last week the U.S. Department of Justice filed a Voting Rights Act objection to the new voter I.D. law of the state of Texas (DOJ had previously objected to the new voter I.D. law of South Carolina.)
Redistricting in Texas is curretly before a three judge panel of the D.C. Circuit Court, because Texas opted for judicial review of redistricting rather than DOJ pre-clearance (as Arizona has done).
Texas did not waste any time. Michael Li, an election law attorney who writes the Texas Redistricting blog, reports on Texas filing a direct challenge to the constitutionality of Section 5 of the Voting Rights Act (which SCOTUS has always upheld an enforced since it was enacted in 1965). Texas goes big on section 5: Makes the constitutionality argument | TEXAS REDISTRICTING:
The State of Texas is seeking permission from the three-judge panel in the voter ID case to file an amended complaint that would directly challenge the constitutionality of section 5 of the Voting Rights Act.
(The amended complaint can be found here.)
The amended complaint explained in the introduction that - as an alternative grounds for relief - “the State of Texas seeks a declaration that section 5, as most recently amended and reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006, exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment.”
With the filing, Texas now moves to the forefront, along with the Shelby County case out of Alabama, in re-raising the constitutional issue after the high court’s 2009 decision to punt the issue. [Northwest Austin Municipal Utility District Number One v. Holder (2009)]. However, because Texas’ case, unlike the Shelby County case, involves a three-judge panel, appeals from the case would go directly to the Supreme Court. That means Texas’ case has the potential for getting to the Supreme Court first, depending on how the timing works out. (Shelby County was argued in late January at the D.C. Circuit and is pending decision.)
Rick Hasen at the Election Law blog asks "Why did Texas change its strategy now and make a frontal attack on the VRA?" Texas Ups Ante in Its Voter ID Case, Says Voting Rights Act is Unconstitutional: Case Could Reach SCOTUS Before Election:
Perhaps [Texas Attorney General] Greg Abbott expects he’s going to lose big in the Texas redistricting case before a three-judge DC court, and he believes that the voter ID case will be an easier and cleaner way to make a frontal attack on the VRA than through the messy and complex Texas redistricting mess. (If the VRA section 5 falls for Texas’s voter ID law, it potentially falls for the Texas redistricting law, for all other Texas election laws, and for all other election laws in jurisdictions subject to section 5 preclearance.)
It is really late in the SCOTUS term. So maybe this does not make it to SCOTUS before adjournment in June. But if Texas wants to use its voter id law in November, the Court could well take it up even in September, before the usual October start of the Court term.
Wow. A major election law case just got a whole lot bigger.
The Austin American-Statesman reports State tries to force challenge of U.S. voting law:
In the filing to a three-judge panel in Washington, the state asked to submit a petition charging that Section 5 of the Voting Rights Act "exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment."
With the filing, Abbott is seeking permission to make a larger argument on the merits of Section 5 of the Voting Rights Act itself. If the provision were overturned, Texas could make changes to its voting rules without federal approval.
State Rep. Trey Martinez Fischer, a San Antonio Democrat, said he was not surprised by Abbott's move.
"Nothing would please ... Abbott more than to rid the State of Texas of Section 5 pre-clearance obligations," he said.
Martinez Fischer, who also chairs the Mexican American Legislative Caucus, is part of a group of plaintiffs that sued the state over redistricting maps passed by the 2011 Legislature. The caucus and other organizations sued over another section of the Voting Rights Act. In their arguments, the plaintiffs accused the state of trying to dilute the minority vote in the redistricting process.
The ongoing redistricting process also has a Section 5 component. The state is awaiting an opinion on pre-clearance from a federal court in Washington on the Legislature's maps.
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Alabama's Shelby County is already challenging Section 5 of the Voting Rights Act, but that case was argued in January in the federal appeals court system and a decision has yet to be reached.
Texas could avoid the appeals courts by making its argument as part of its voter ID case, then having any appeals continue to the U.S. Supreme Court.
Given the attacks on voting rights and the voter suppression efforts by numerous Tea-Publican state legislatures across the country this year, it only makes the case for the continuing vitality and continuing need for the Voting Rights Act. SCOTUS has always upheld and enforced the law. It would be conservative judicial activism on the order of Citizens United v. FEC for the court to reverse its line of precedents now. The furor that followed that decision may make the cour hesitant to engage in further judicial activism.