By Ben Kamisar, The Dallas Morning News
WASHINGTON — Ten months after the Supreme Court struck down a key provision of the Voting Rights Act, efforts have stalled in Congress to restore federal scrutiny of states with a history of racial bias.
Freed from the need for Justice Department approval before changing election rules, even minor ones, states moved quickly to impose tight voter ID laws. But changes are also playing out quietly at the local level.
In Jasper, an East Texas town with a history of racial tension, the City Council is deciding whether to annex mostly white subdivisions. In Galveston, Texas, some court districts have been eliminated. Civil rights advocates complain that these moves dilute minority populations, unfairly reducing the influence of non-white voters.
Before last summer’s court ruling, such changes in nine states could not take effect without preapproval from Washington. Defenders of the decades-old system say the oversight served as a deterrent, prompting state and local officials to think twice before imposing burdensome or even unconstitutional measures.
Rule changes can still be challenged in court after the fact. But such lawsuits are costly, and only a small number have been filed nationwide compared to the typical Justice Department caseload before the Supreme Court upended five decades of civil rights law.
“Now, the burden is on minority groups to go in and try to … prove a measure is discriminatory,” said Michael Li, a Dallas lawyer and Democrat who runs a blog on redistricting and election law. “A watchdog has been removed from the process, and that watchdog was pretty valuable.”
The implications of the new landscape are apparent in Galveston County. A federal court verdict is pending over whether redrawn Justice of the Peace districts unfairly reduce minority voting strength. The U.S. Justice Department denied a proposal to change the map in 2012.
But it lost the authority to do so when the Supreme Court ruled last June in a case known as Shelby County vs. Holder, and county officials again changed the districts.
Section 4 of the 1965 Voting Rights Act provided a formula for identifying states that deserved federal oversight — called preclearance — due to a history of discrimination against minority groups. The Supreme Court ruled, 5-4, that the criteria for such supervision were badly outdated. The justices said Congress could draft new ones, but there’s been little progress on a revision of the law.
There’s no official count of how many election rule changes have occurred in areas once subject to preclearance since the high court’s ruling. Records from the Brennan Center for Justice, a legal advocacy group at New York University’s School of Law, show that at least nine federal voting rights lawsuits have been filed, and at least five involve changes that previously would have required preclearance.
The Justice Department blocked about 1,000 voting changes from 1969 to 2000. That’s about 38 per year, though the average since 2000 had been about 5 per year.
Attorney General Eric Holder has vowed to be more aggressive in enforcing other provisions of the voting law that let the department challenge violations after the fact.
The department is currently battling Texas in court over redistricting maps and the voter ID law, which Gov. Rick Perry, Attorney General Greg Abbott and other state officials vigorously defend as constitutional and necessary to prevent voting fraud.
Myrna Perez, deputy director of the Brennan Center’s Democracy Program, said the cases can be too expensive for individuals to fight. It’s tougher for advocacy groups to learn about many local voting changes, let alone to litigate them.
Potential violations can slip through the cracks.
That’s a concern for some residents in Jasper, which received national attention in 1998 when three white men dragged a black man to death behind a pickup truck. In 2011, two black council members were recalled, paving way for the council to fire Jasper’s first black police chief. Critics called the chief unqualified, though the East Texas city settled a discrimination suit for $831,000 in February.
City leaders say they’re considering the annexations to boost the local tax base, not to dilute minority voting strength. They haven’t decided on which areas may be included in the move.
Without preclearance, Washington would have no authority to review an annexation ahead of time.
Texas Sen. John Cornyn, the No. 2 GOP leader and a senior member of the Judiciary Committee, said after the Supreme Court decision that he would consider a new formula for preclearance. But in a recent interview, he warned against any “federal intervention in a selected handful of states.”
“Anyone who feels like their voting rights have been impaired would have a right to bring a federal lawsuit,” he said.
Michigan Democrat John Conyers and Wisconsin Republican Rep. Jim Sensenbrenner, a former chairman of the House Judiciary Committee, have championed a new approach. Their plan would initially cover Texas, Georgia, Louisiana and Mississippi, based on a history of relatively recent voting rights violations. It would also require public notice for many voting rights changes in all states and strengthen other voting rights protections.
The bill has only 22 House co-sponsors.
There’s little apparent movement in the Democrat-controlled Senate, either. Judiciary Chairman Patrick Leahy of Vermont, the bill’s lead Senate sponsor, is trying to persuade Republicans before moving forward, aides said.
Groups including the NAACP and the Brennan Center are lobbying for the bill.
Deborah Vagins, senior legislative council at the ACLU, expressed frustration that no hearing has been held on the bill so far.
“Every member says they want to protect the voting rights of their constituents,” she said. “Have a hearing, let’s talk about how it works and if you still have concerns, let’s go through an amendment process.” She added that she was optimistic that the bill could ultimately pass Congress.
For Rep. Kevin Brady (R-TX) reimposing preclearance would be unacceptable.
“The bill has been written to target certain states and certain communities unfairly,” he said. “I don’t trust a trigger to reflect the need for preclearance.”
Congress reauthorized the Voting Rights Act in 2006 by an overwhelming margin. Brady was one of more than 150 current lawmakers who supported that.
Democratic Rep. Sheila Jackson Lee of Texas said the new bill offers a “50-state solution.” Any state is eligible for preclearance if it shows a pattern of discrimination, she said, and reinstating such oversight is essential to protecting voting rights.
“Going into the November election without the protection of everyone’s right to vote would literally be a crime,” she said.
Rick Smith via Flickr.com