“This issue transcends partisanship, and we must work together,” said AG Eric Holder in a speech before the National Urban League in Philadephia a week ago. The “issue” Holder referred to was the overthrow by the Supreme Court of the preclearance requirement–Sections 4 and 5–of the Voting Rights Act. Thanks to the ruling in Shelby County v Holder, it will no longer be necessary for selected states and jurisdictions to have all proposed changes to voting procedure approved (precleared) by the Department of Justice or the DC District Court.
And how has the Attorney General decided to “transcend partisanship” and “work together”? By filing a “Statement of Interest” in the District Court for the Western District of Texas, claiming the state has displayed a “history of pervasive voting-related discrimination against racial minorities” and demanding the federal court impose a preclearance requirement against the state for the next 10 years. In short, the Attorney General hopes to effectively rescind the Supreme Court ruling by demanding the voters of Texas are once again placed under the fair and equitable scrutiny of his own Department of Justice–the most thoroughly political and scrupulously biased Department in the nation’s history.
Naturally, this was the same Department that nixed the proposed Texas Voter ID law prior to the 2012 election, even though it mirrored an Indiana ID law the Supreme Court found constitutional by a 6-3 vote in 2008.
Can the Attorney General do this…legally, that is? Yes. Left untouched by the Supreme Court is Section 3 of the Voting Rights Act. Under Section 3 rules, a suit may be brought against states or jurisdictions alleged to be actively discriminating against minority voters. Should the court agree, the defendant jurisdiction may be “bailed in” (that is, subject to the same preclearance rules effectively vacated last month by the Court.)
However, in order to succeed, the Justice Department or any plaintiff must prove intentional discrimination on the part of the defendant. The burden of proof switches around completely, and states are no longer required to prove their innocence (as was the case under Section 5 rules.) Obviously, this represents a major difference as “offending” jurisdictions are no longer presumed guilty.
New York University professor Richard Pildes sums up Holder’s scheme: “If this strategy works, it will become a way of partially updating the Voting Rights Act through the courts.” “The Justice Department is trying to get the courts to step into the role the Justice Department played before the Shelby County decision. The Voting Rights Act has always permitted this, in some circumstances, but this strategy wasn’t used much. If this approach works, it will help update the Voting Rights Act even without Congressional action.”
So as usual, the Obama Administration is in search of a judge who will see things their way, regardless of the law or the facts. Good vibrations, amity, and simpatico in order that yet another issue may be legislated from a left-leaning bench.
Texas will be the Regime’s test case. If successful, the DOJ will also file against North and South Carolina–every state covered during the past 50 years by the now-defunct preclearance rules of the Voting Rights Act. Courts will continue to be the new Congress. What a way to transcend partisanship.