DOJ Makes First Move Against States After Voting Rights Ruling

One month after the Supreme Court struck down a key section of the Voting Rights Act that identified certain states that needed federal permission to change their voting laws, the Obama Administration announced Thursday that it would use a different part of the law to reimpose similar pre-clearance requirements in the state of Texas.

“This is the Department’s first action to protect voting rights following the Shelby County decision, but it will not be our last,” Attorney General Eric Holder said during a speech to the National Urban League convention in Philadelphia. “My colleagues and I are determined to use every tool at our disposal to stand against discrimination whenever it is found.”

The Supreme Court voided the part of the law historically used to limit voting law changes in states like Texas, with histories of discrimination at the ballot box, because of the way the states were identified. But Holder said that the Justice Department would now use other parts of the law to prevent discrimination before elections. These include Section 2, which blocks any racially prejudiced practices, and Section 3, a more obscure provision of the act, that allows federal courts to enforce pre-approval measures for voting changes in states and jurisdictions that engage in blatant discrimination, a violation of the 14^th and 15^th Amendments.

(MORE: Viewpoint: Voting-Rights Decision Spells the End of Fair Elections)

“Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder – as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized – we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,” Holder said.

The Justice Department action against Texas will likely affect the voter identification law State Attorney General Greg Abbott rushed to implement a mere two hours after the Supreme Court decision. And the announcement comes as the state senate in North Carolina, another state that had jurisdictions covered by the Voting Rights Act, is moving forward with a sweeping restrictive voting bill that requires voters to present voter identification at the polls, reduces early voting by a week, ends early registration for 16 and 17-year-olds, and prohibits counties from extending polling hours on election days. Other states like Alabama and Mississippi, once covered by the pre-clearance provisions, have also been considering changes to their voting laws. 

As a result of the move, the Justice Department hopes to maintain the current system, wherein possible discrimination is headed off before an election. “If you only find out about voter discrimination after the elections, the relief is going to be limited,”   said Myrna Perez, the deputy director of the Brennan Center for Justice based at New York University School of Law.

(MORE: High Court Rolls Back the Voting Rights Act of 1965)

Since the ruling, Holder has been speaking out against the court’s decision, calling the Voting Rights Act a “cornerstone of civil rights law” while expressing his deep disappointment in June, and referring to it as a “flawed decision” at an NAACP conference last week.

On the federal level, Congress has the power, under the Supreme Court ruling, to establish a new formula for pre-clearance to identify the states that need federal permission to change their laws. On Thursday, Holder reiterated his desire for Congress to take up the call. “After all, this has never been a partisan issue,” he said. “Every reauthorization of the Voting Rights Act was signed into law by a Republican president. It’s a question of our values as a nation. It goes to the heart of who we are as a people.”

Rep. Jim Sensenbrenner of Wisconsin, a key Republican supporter of the Voting Rights Act, says after the August recess, he expects Congress will begin working toward fixing the act. “The important thing is that we fix it right,” Sensenbrenner told TIME. “If we don’t fix it right and it’s found unconstitutional again we’re not going to get another chance.”

But there is no certainty that Congress will act before the next election, prompting Holder’s decision to take action unilaterally. “As this debate unfolds, it’s important for all Americans to note that—despite the Supreme Court’s flawed ruling—our voting rights remain fully intact,” Holder said.

MORE: States Eye Voting Obstacles in Wake of High-Court Ruling