After the U.S. Supreme Court hollowed out the Voting Rights Act, Texas was one of the first out the gate to declare that it would immediately enforce a voter ID law and redistricting plan that were both blocked by the Act last year. Texas couldn’t prove that the voter ID law wouldn’t have racially discriminatory effects, as was required under Section Five, and state lawmakers were found to have discriminatory intentions when they created the redistricting plan.
Because of those intentions, Texas may find itself subject to preclearance despite the SCOTUS ruling. Reason being is that Section Three of the Act allows jurisdictions to be "bailed in" to Voting Rights Act oversight if a court finds it guilty of racist intentions. Texas, which leads the nation in Voting Rights Act violations despite it being one of the latest states added, probably won’t be happy with this.
As reported in the Texas Redistricting & Election Law blog:
Could Texas remain subject to preclearance? The answer, which may surprise, is actually, yes.
In Tuesday’s Shelby Co. decision, the Supreme Court effectively ended preclearance – for now – under section Five of the Voting Rights Act by invalidating the formula for determining what states are covered.
However, section Five is not the only section of the Voting Rights Act that deals with preclearance. If certain conditions exist, courts also can impose tailor-made preclearance requirements under section Three of the Voting Rights Act – a provision that, unlike section Five, applies nationwide and is not subject to expiration.
Could Texas remain subject to preclearance? The answer, which may surprise, is actually, yes.
In Tuesday’s Shelby Co. decision, the Supreme Court effectively ended preclearance – for now – under section 5 of the Voting Rights Act by invalidating the formula for determining what states are covered.
However, section 5 is not the only section of the Voting Rights Act that deals with preclearance. If certain conditions exist, courts also can impose tailor-made preclearance requirements under section 3 of the Voting Rights Act – a provision that, unlike section 5, applies nationwide and is not subject to expiration.
Up until now, that section hasn’t gotten a lot of attention in Texas because the state was already required to submit all voting changes for preclearance under section 5.
But it very well could come into play in the future, now that section 5 is effectively dead.
So how does section 3 work?
Basically, section 3 comes into play whenever a court in a case under section 2 of the Voting Rights Act finds intentional discrimination that would violate the 14th or 15th amendments to the Constitution.
Once that happens, the court has the discretion under section 3 not only to remedy the intentional discrimination but, if it choses, to retain jurisdiction and impose preclearance requirements – a process known colloquially as ‘bail in.’
As under section 5, preclearance under section 3 would require a jurisdiction to submit election or electoral changes either to the court or to the Justice Department.
Changes would be rejected unless the jurisdiction can show that the change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" or abridge the guarantees afforded language minorities.
Read the rest of the Texas Redistricting blog here.