Texas Voter Discrimination Is ‘Big Test’ for Long-Dormant Remedy

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By Kimberly Strawbridge Robinson

Voting rights lawyers challenging restrictive voting laws are employing a rarely used tool in the Voting Rights Act as a way to reinstate federal oversight over potentially discriminatory voting tactics: the VRA’s “bail-in” procedures.

The U.S. Supreme Court largely halted federal oversight over voting procedures in 2013 when it struck down part of the Voting Rights Act in Shelby County v. Holder. In particular, the Supreme Court struck down Section 4 of the VRA, which largely defined who was subject to such oversight.

After Shelby County, states—including Texas—that had been removed from federal oversight passed voter identification laws and other voting procedures that voting rights advocates say suppress minority votes.

Those advocates are now eyeing another portion of the VRA that could “bail in” troublesome jurisdictions to federal oversight on a case-by-case basis. Under Section 3 of the VRA, plaintiffs can ask courts to monitor proposed changes to voting laws as a remedy for past intentional discrimination.

That’s exactly what two separate sets of plaintiffs challenging discriminatory voting procedures in Texas have requested. Those cases provide a “big test” of whether Section 3’s bail-in procedures can be a viable substitute to the coverage formula struck down in Shelby County, Michael Li, who focuses on election law issues at the Brennan Center for Justice, New York, told Bloomberg BNA.

The outcome could determine whether the increasing minority population can effectively participate in the 2018 mid-term elections and translate their growing numbers into political power. The next round of redistricting is also looming in 2020. The political parties in control of state houses will be able to redraw voting districts to their advantage, further cementing their power.

‘Pockets of Discrimination’

Congress passed the landmark Voting Rights Act in 1965 to address systemic discrimination in voting requirements.

One way it did so was through so-called preclearance under Section 5, which required certain jurisdictions to first obtain federal approval before implementing any changes to their voting schemes.

Preclearance wasn’t a nationwide requirement, though. Congress intended its preclearance provision to cover only “pockets of discrimination,” Travis Crum, of Mayer Brown LLC, Washington, told Bloomberg BNA. Crum wrote an authoritative note on the voting law’s bail-in procedures that The Wall Street Journal called a “ blueprint” for litigation following Shelby County.

Accordingly, Congress established a coverage formula under Section 4 of the act, roping in only historically discriminatory jurisdictions for federal oversight, Li said. Most were in the deep south, Crum noted.

The formula was periodically adjusted to bring in additional jurisdictions, though, and Texas came under the preclearance umbrella in 1975, Crum said.

That year, however, was the last time Congress updated the coverage formula, despite the fact that it left the preclearance requirements in place.

As a result, jurisdictions were covered by the onerous preclearance process based on “decades-old data and eradicated practices” in those states, the Supreme Court said in Shelby County. Some jurisdictions that had long given up discriminatory practices were still covered; others that newly engaged in discrimination were not.

Such a regime ran afoul of the Fifth and 14th amendments, the Supreme Court found. In doing so, the court effectively gutted the preclearance requirement, and Congress hasn’t acted to replace the now-defunct coverage formula.

Section 2 Setbacks

After Shelby County, voting rights advocates have looked to other sections of the Voting Rights Act to prevent discriminatory voting laws.

Several lawsuits have been brought under Section 2 of the Voting Rights Act, which allows for voting discrimination to be challenged in any jurisdiction regardless of whether it’s subject to the preclearance process.

But voting rights advocates argue that Section 2 doesn’t provide protection as robust as preclearance under the coverage formula.

In particular, while jurisdictions were required to get approval from the federal government before implementing any voting changes under the preclearance process, Section 2 allows those changes to go into effect before being challenged.

Only through litigation after the law is in place can challengers remove discriminatory restrictions under Section 2. The laws, however, will typically remain in effect while the litigation proceeds, often for years.

Largely Dormant Remedy

Section 3 of the Voting Rights Act could provide an option for challenging restrictive voting laws before the laws go into effect. Under that section, federal courts can “bail in” specific jurisdictions to federal oversight once again.

Those procedures, though, have only been used a handful of times, Crum said. That’s because the Voting Rights Act’s coverage formula swept the worst jurisdictions into federal review, Li said.

As a result, the bail-in procedures remained largely dormant, Crum said.

“During the VRA’s first decade, no jurisdiction was bailed-in via” Section 3, Crum wrote in his law review article.

Between 1975 and Shelby County in 2013, Section 3 bailed in eighteen jurisdictions, according to a brief by the Obama administration in one of the Texas cases following Shelby County. While two of those jurisdictions were entire states—New Mexico and Arkansas—the other jurisdictions were relatively small. They included “twelve counties, two cities, and two school districts,” the federal government said in its brief—including jurisdictions from Los Angeles to Escambia County, Fla., and Charles Mix County, S.D. to Chattanooga, Tenn.

The Supreme Court’s Shelby County decision may have changed that sparing use, he said. Now, more plaintiffs challenging restrictive voting laws are asking courts to bail in jurisdictions, Li said.

Indeed, the federal government specifically urged the court to bail in Texas after the Supreme Court removed the preclearance requirement in Shelby County.

While the Trump administration hasn’t yet weighed in on Section 3 as a proper remedy in that case, the administration did switch positions on the merits of the underlying litigation and now sides with Texas.

‘Intentional Discrimination’

But bail-in has its shortcomings.

Even if states like Texas are brought back into federal review under the bail-in procedures, it still won’t entirely return the country to a pre- Shelby County world, election law professor Derek T. Muller, of Pepperdine University School of Law, Malibu, Calif., told Bloomberg BNA.

Most notably, courts can only bail-in jurisdictions after a finding that the jurisdiction engaged in “intentional discrimination,” Li explained. Showing that the law had a discriminatory effect isn’t enough.

Proving intentional discrimination on the part of legislators is a difficult and time-consuming task, Crum said. Li noted that one of the Texas cases finding intentional discrimination has been pending since 2011, and it’s not likely to end anytime soon. In fact, Texas recently asked the Supreme Court to step in, which will drag out the litigation even more.

Moreover, many judges are reluctant to say that legislators were motivated by racism, Crum added.

While there have been bills introduced in Congress to lower the standard to bail in jurisdictions, none have gotten much traction, he said.

Oversight Scope

Other aspects of the bail-in procedures limit their effectiveness as a substitute for the coverage formula.

Under the coverage formula, jurisdictions were subject to federal review seemingly indefinitely. Under the bail-in procedures, the time period for federal oversight is up to the court, Li said.

Similarly, while jurisdictions roped in under the coverage formula had to submit any changes to their voting laws for federal review, the scope of federal oversight is up to the court under bail in, Muller said. A court could require the jurisdiction to seek approval for all voting changes, or limit it to particular voting rules, like redistricting or voter identification laws, Li said.

Showing Teeth

The two Texas cases where plaintiffs are requesting “bail-in” as a remedy could prove to be a critical test of the procedure.

On August 15, a three-judge district court panel found that the Lone Star state had intentionally discriminated against minorities when drawing voting districts.

Less than two weeks later, another district court found that Texas intentionally disenfranchised minority voters with its voter ID law.

Either case provides courts with the opportunity to bail in Texas and return it to federal oversight.

These cases will likely show whether the bail-in procedures have any teeth, or whether bail in will remain merely a secondary remedy, Li said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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