In October, federal judge Nelva Gonzalez Ramos of the Southern District of Texas issued a far-reaching opinion striking down Texas’ new Voter ID law on several grounds. She not only found that the law violated Section 2 of the Voting Rights Act, but also that it was an unconstitutional burden on the right to vote under the Equal Protection Clause, unlawful intentional discrimination against Hispanics and African-Americans, and a poll tax in violation of the Twenty-Fourth Amendment. Although the Fifth Circuit stayed the injunction and allowed the Voter ID law to take effect in November, Judge Ramos’ decision has received quite a bit of publicity.
One little-discussed aspect of the 147 page opinion was a reference the Department of Justice’s attempt to require Texas to once again get permission from the federal government whenever it changes its election laws. As readers are aware, before last year’s decision in Shelby County v. Holder, Texas and many other States had to receive “preclearance” from DOJ to enact any new voting laws. Shelby County absolved states of that requirement. However, little-known Section 3(c) of the VRA allows a federal court to exercise supervisory authority over state election laws “for such period as it may deem appropriate” if it finds that a State has abridged “the voting guarantees of the fourteenth or fifteenth amendment.” Thus, DOJ has contended that it may bring a State back under the preclearance regime after one finding of intentional discrimination by a federal judge.
The attempt to “bail in” Texas will be the first significant test of this provision in the post-Shelby County era. Even if the finding of intentional discrimination in this case was correct, Section 3(c) is an extraordinary remedy. As the Supreme Court has recognized, the preclearance provision in the VRA was one of the strongest assertions of federal power in our history: federal review of duly enacted state laws is foreign to our system of dual sovereignty. However, it was justified for decades because the covered States and subdivisions had engaged in non-stop discrimination for more than a century before the passage of the VRA.
Unlike the original preclearance provision, DOJ’s attempt to “bail in” Texas is based on the finding of one federal district judge in a single case based upon circumstantial evidence. As such, it is an even greater exercise of federal power and should be held unconstitutional. At the very least, DOJ should be required to prove that Texas has engaged in a pattern or practice of discrimination in order to place it back under the heavy hand of federal supervision. But if the tone of Judge Ramos’ opinion is any indication, Texas could be “bailed in” sooner, rather than later.