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July 25, 2013 4:25 PM The Side Door to Voting Rights Preclearance

By Ed Kilgore

I mentioned this briefly at Lunch Buffet, but because the story will be with us for a while, let me quote from Lyle Denniston’s explanation at SCOTUSblog of Eric Holder’s strategy for re-establishing a preclearance requirement for states engaged in repetitive and egregious voting rights violations in the wake of the Supreme Court’s Shelby County v. Holder decision:

The preclearance provision is contained in Section 5 of the Voting Rights Act. It has been widely considered to be the government’s most effective legal weapon against race bias in elections, because it requires states and local governments with a past history of racial discimination in voting to get official permission in Washington before they may put into effect any change, however small, in voting laws or procedures.
The 1965 law provided two ways to impose a Section 5 obligation on a state or local government. One was a virtually automatic formula, contained in Section 4 of the law. If a state or local government had a sustained history of racial bias in its voting patterns in the past, that triggered a coverage formula that led directly to a Section 5 preclearance obligation. Preclearance can be sought either from the Justice Department or from a three-judge District Court in Washington.
The second way to get a state or local government put under a preclearance duty is the 1965 law’s Section 3 — the one that the Attorney General said the government will now be invoking. If a state or local government is found to have recently engaged in intentional race bias in voting, a court has the power to impose the preclearance duty on that jurisdiction for a set period of time. It is not an automatic method, in contrast to the coverage formula in Section 4.
While the Supreme Court in the Shelby County ruling did not disturb Section 5 and the preclearance requirement, it did strike down the Section 4 coverage formula. That has been the quickest and most effective way to lead to Section 5 preclearance. The Court’s majority ruled that the coverage formula was seriously out of date, and could no longer be used to trigger Section 5 for any state or local government anywhere in the country.
The Shelby County decision did not disturb Section 3 as a separate way to bring about a preclearance duty. That is why advocacy groups — and now the Obama administration — are turning to Section 3 as the next-best way to enforce the 1965 law through preclearance.

The immediate effort will be focused on Texas, thanks to past court findings of intentional discrimination. But challenges to new voting rules and districting decisions elsewhere—most notably those in North Carolina, which are setting a kind of Gold Standard for voter dilution and repression—could well be next, particularly if the Texas litigation is successful.

BTW, I’d like to note that Lyle Denniston is 81 years old. The clarity and comprehensiveness of Denniston’s writing gives this old goat hope for a journalistic second wind that lasts a while.

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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