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July 26, 2013 1:31 PM “End-Run” Around SCOTUS?

By Ed Kilgore

It’s not as prominent as internal GOP arguments over “de-funding Obamacare” or the War On Terror, and is almost certainly more one-sided, but there is some dissension in the Republican ranks over the Justice Department’s new effort to salvage the preclearance requirement central to Voting Rights Act enforcement via Section 3 rather than the SCOTUS-stricken Section 4.

Rick Perry, whose state’s inveterate efforts to restrict access to the polls is the immediate target of Eric Holder’s new strategy, is doing what he does best: bellowing with rage:

Gov. Rick Perry is blasting the Obama administration, after Attorney General Eric Holder’s announcement this morning that he will try to use the courts to reimpose a form of “preclearance” for voting law changes. Perry called that an “end-run around the Supreme Court,” which last month tossed out a key provision of the Voting Rights Act, freeing Texas and other states from the burden of seeking federal approval for new voter ID laws, congressional and legislative district maps, polling sites or election procedures.
“Once again, the Obama Administration is demonstrating utter contempt for our country’s system of checks and balances, not to mention the U.S. Constitution,” Perry said in a written statement. “This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process.”

This is not the view of veteran conservative Rep. James Sensenbrenner, a former Chairman of the House Judiciary Committee and a rare Republican voice in favor of action to revive VRA enforcement, per this report from The Hill’s Mike Lillis:

The Obama administration has every right to challenge Texas’ unilateral adoption of new voting laws, a top Republican argued Thursday.
Rep. James Sensenbrenner (R-Wis.) said the Voting Rights Act authorizes the Justice Department to seek a court order requiring states to get federal approval before implementing new election procedures, as Attorney General Eric Holder said he will do Thursday in the case of Texas.
Holder’s announcement drew howls from Texas Republicans, who are accusing the DOJ of trampling states’ rights and ignoring June’s Supreme Court decision to eliminate a central part of the VRA.
But Sensenbrenner, who as head of the House Judiciary Committee in 2006 championed the last VRA reauthorization, suggested those critics have misread his law.
“The department’s actions are consistent with the Voting Rights Act,” Sensenbrenner said Thursday in an email.

The end-run argument, BTW, misses the mark completely since the Justice Department’s action will probably wind up before SCOTUS.

And speaking of the Supreme Court, Justice Ruth Ginsberg, who wrote a pungent dissent in the Shelby County v. Holder case arguing against the minority’s breezy assertion that voting discrimination was a thing of the past, is in the rare position of being almost immediately vindicated by events:

Justice Ruth Bader Ginsburg says she’s not surprised that Southern states have pushed ahead with tough voter identification laws and other measures since the Supreme Court freed them from strict federal oversight of their elections.
Ginsburg said in an interview with The Associated Press that Texas’ decision to implement its voter ID law hours after the court struck down a key provision of the Voting Rights Act last month was powerful evidence of an ongoing need to keep states with a history of voting discrimination from making changes in the way they hold elections without getting advance approval from Washington.
The Justice Department said Thursday it would try to bring Texas and other places back under the advance approval requirement through a part of the law that was not challenged.
“The notion that because the Voting Rights Act had been so tremendously effective we had to stop it didn’t make any sense to me,” Ginsburg said in a wide-ranging interview late Wednesday in her office at the court. “And one really could have predicted what was going to happen.”

Matter of fact, she did.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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