Will Texas be “bailed in”?

The Justice Department is planning to institute legal action in a string of voting rights cases across the nation. As part of this campaign, Eric Holder says the government will ask a federal court in Texas to “subject the State of Texas to a preclearance regime similar to the one required by Section 5 of the Voting Rights Act.”

But wait! The Supreme Court just ruled that the formula in Section 4 of the Voting Rights Act for deciding which jurisdictions must have changes to their voting laws precleared by the DOJ under Section 5 is unconstitutional. So how can Holder expect a court to impose a “preclearance regime” on Texas?

The answer lies in the seldom-litigated “bail-in” provision of Section 3 of the Voting Rights Act. As election law expert Rick Hasen explains, if a court finds that a jurisdiction has intentionally violated constitutionally protected voting rights, the court has the power to impose the preclearance obligation on that jurisdiction for a period of time it considers appropriate.

Proving intentional discrimination in a modern voting rights case isn’t easy. But it need only be proven once, in a challenge to a any of a jurisdiction’s various voting laws, to effectuate a “bail in.”

Presently, as Lyle Denniston of the ScotusBlog points out, plaintiffs are trying to bail Texas back into a preclearance requirement in a case challenging new election districts for the Texas state legislature and for the House of Representatives. Another possible vehicle is a challenge to Texas’s voter ID law.

The voter ID law is controversial. Critics complain that it requires people without identification to travel up to 125 miles each way at their own expense to get an id. They also note that student ids don’t suffice but concealed weapons permits do.

A three-judge panel in Washington D.C. previously blocked the law, finding that it burdens blacks and Hispanics more than whites. But this finding, standing alone, doesn’t establish intent to deprive blacks and Hispanics of voting rights. Moreover, in that case the burden of proof was on Texas. Under Section 3, the burden will be on the plaintiffs and the DOJ.

If a court does “bail in” Texas, the case will probably head to the Supreme Court. There, Justice Kennedy again would likely be the swing vote.

As Hasen points out, the existence of Section 3, and the government’s willingness to invoke it, probably makes it less likely than before that Congress will “fix” the Voting Rights Act to reinstitute the old preclearance regime with new criteria. But I always figured that such congressional action wasn’t at all likely.

However, a Supreme Court decision that could be portrayed as “gutting” Section 3 bail-in (on top of the prior decision “gutting” bail-out) might generate enough of an outcry to induce Congress to act. The Court might be reluctant to issue such a decision out of concern over an outpouring of allegations that it is hostile to voting rights.

NOTE: This post has been changed from the original to identify the correct court that ruled on the Texas voter ID law.

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