03.11.09

Did someone say preclearance?

Posted in Around The Nation, Around The State, Commentary, Elections, Uncategorized at 1:10 pm by wcnews

From this Burka post, The Indiana redistricting case: Is it in point?, the issue of court challenges to a Texas Voter ID law was brought up during the marathon hearing in the Texas Senate.  It was brought up in the context of the US Supreme Court (SCOTUS) ruling last year that upheld the constitutionality of Indiana’s Voter ID, and whether that would apply to Texas’ law as well.

[Gerry Hebert's] answer was that the Indiana case involved a facial challenge to the Indiana statute: Did the Voter I.D. law burden the fundamental right to vote? The plaintiffs had to prove that the Voter I.D. law places an unconstitutional burden on the right to vote. The fate of the Texas Voter I.D. bill, if it becomes law, will be determined by the Department of Justice under the Voting Rights Act, rather than by the courts. Here the burden will fall on the state to show that the Voter I.D. bill will not produce a regression of minority voting strength.

This brought to mind the case that will be heard before the SCOTUS in April regarding the Voting Rights Act and preclearance, Northwest Austin Municipal Utility District v. Holder. A little context from Concerned Citizens.

This case is local to Texas and could have impact on an interesting facet of the Voting Rights Act of 1965. Within the Voting Rights Act is a provision that forbids nine states and nearly six dozen counties with histories of racial voting discrimination from making changes to their election laws without receiving approval from the DOJ or a panel of three federal judges in Washington.

Texas is one of those nine states that has to have any changes to election law go through “preclearance” before it actually becomes law. Much more on this from the AAS from Jan. ’09, Local utility challenges key portion of landmark Voting Rights Act.

Launching a national debate on racial discrimination in America, the U.S. Supreme Court on Friday accepted a case from a small Austin utility that argues that key portions of the Voting Rights Act are outdated and no longer necessary to protect minority voters.

The suddenly high-profile case could produce a milestone decision in election law and civil rights.

Northwest Austin Municipal Utility District No. 1, which serves about 3,500 customers in the Canyon Creek neighborhood, has asked the high court to overturn a provision requiring that every government in Texas receive approval from the U.S. Justice Department before changing voting procedures.

The “preclearance” provision, known as Section 5 of the act, also applies to seven other states — and portions of another eight states — with a history of racial discrimination in voting. Most are in the South.

As as this comment to Burka’s post makes clear the Texas Secretary of State would probably seek to bypass the Obama Department of Justice and take it’s chances with the three judge panel.

FYI – everyone really needs to read the Voting Rights Act. All this talk of the DOJ approving the Voter ID bill assumes that the Secretary of State chooses to preclear the bill through the administrative process of the DOJ. The Voting Rights Act actually provides for two methods of preclearance 1) the DOJ administrative process or 2) asking for preclearance from a three judge panel of the DC Court.

The chances of getting an R dominant panel in the DC Court are pretty good and it isn’t hard to see a scenario where the Texas SOS chooses to preclear through the court process and avoid the Obama DOJ. Not to mention, the three judge panel will be bound by the precedent of the Georgia and Indiana cases more so than the political appointees in DOJ.

In EOW’s unexpert opinion, If  SCOTUS  was to strike down Section 5 of the Voting Rights Act, preclearance, then a Voter ID bill in Texas would no longer be subject to preclearance.

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