This column by ACRU Senior Legal Analyst Ken Klukowski was published July 25, 2013 on Breitbart.com.
Attorney General Eric Holder has launched a war against Texas, and in doing so is defying the Supreme Court of the United States. The imminent judicial beat-down of Holder highlights that this case is not about the rule of law and instead abuses the federal courts for political purposes to rile up the far left and demonize Republicans.
The Voting Rights Act of 1965 (VRA) was enacted pursuant to the Constitution’s Fifteenth Amendment, making it illegal to deny someone’s voting rights due to race. Under VRA Section 2, if any government official violates your voting rights anywhere in the country, you can sue in federal court.
But some parts of this country (mostly in southern states) had such rampant voter suppression in the 1960s that case-by-case litigation could not solve all those problems prior to each election. So VRA also created a special “preclearance” system: under VRA Section 5, those jurisdictions could not change their voting laws or procedures without receiving permission beforehand either from the U.S. Department of Justice (DOJ), led by the attorney general, or a federal court in Washington, D.C. VRA Section 4 contained the provision defining which states are under Section 5’s federal supervision.
In 1966, the Supreme Court upheld Section 5 against a constitutional challenge, holding that because voter suppression was so extreme at that time in specific parts of the country, the Fifteenth Amendment justified Congress enacting such extraordinary legislation.
But America has changed, so constitutional lawyers Burt Rein and Will Consovoy led a fresh constitutional challenge against VRA Section 5. Last month in Shelby County v. Holder, the Supreme Court agreed, striking down part of the preclearance system. The Court noted that the state with the worst racial voting statistics now was Massachusetts, a northern state, which also has a black governor.
For the Court’s majority, Chief Justice John Roberts wrote:
Section 5 of the [VRA] required States to obtain federal permission before enacting any law related to voting–a drastic departure from basic principles of federalism. And Section 4 of the Act applied that requirement only to some States–an equally dramatic departure from the principle that all States enjoy equal sovereignty. This was strong medicine, but Congress determined it was needed to address entrenched racial discrimination in voting, an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.
The Court held that America is now a different country in this regard, so “the conditions that originally justified [Section 5] no longer characterize voting in the covered jurisdictions.” In modern America, “voter turnout and registration rates now approach parity. Blatantly discriminatory evasions of federal are rare. And minority candidates hold office at unprecedented levels.”
As a consequence, Roberts wrote:
… no one can fairly say that [the record] shows anything approaching the pervasive, flagrant, widespread, and rampant discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time.
But instead of striking down Section 5, the Court invalidated only Section 4’s formula. It held the formula was no longer rationally related to current facts. The Court left Section 5 in place but has put the preclearance system on the shelf until Congress can develop a new formula to show which states should be subject to preclearance. It was a modest step that took many lawyers by surprise by keeping Section 5 on the books.
Nevertheless, President Barack Obama and Attorney General Eric Holder sharply criticized the Court’s decision. Obama said he was “deeply disappointed.” Holder called it “a serious setback” for voting rights.
Now Holder is rebelling against the Supreme Court by going after Texas. Although VRA Section 5 only applies to states meeting Congress’ criteria (and until Congress enacts a new Section 4 there are no criteria and thus no states are currently under preclearance), Holder now wants a federal court to order Texas to submit to preclearance anyway.
Texas Gov. Rick Perry called out Holder for “doing an end run around the Supreme Court,” saying in a statement: “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.”
This absurd spectacle generated by Holder’s outrageous partisanship suggests that Justice Clarence Thomas’ approach in Shelby County would have been better, striking down not only part of Section 4 but Section 5 itself.
Thomas joined Roberts’ majority opinion for the Court, but also wrote a concurring opinion, which includes:
Indeed, circumstances in the covered jurisdictions can no longer be characterized as “exceptional” or “unique.” The extensive pattern of discrimination that led the Court to previously uphold Section 5 as enforcing the Fifteenth Amendment no longer exists. Section 5 is, thus, unconstitutional.
While the Court claims to “issue no holding on Section 5 itself,” its own opinion compellingly demonstrates that Congress has failed to justify “current burdens” with a record demonstrating “current needs.” By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision. For the reasons stated in the Court’s opinion, I would find Section 5 unconstitutional.
All that notwithstanding, Holder is acting as if Texas is still under preclearance requirements. This continues his years-long crusade against the Lone Star state, going after voter-integrity groups in general and Texas in particular.
This is cynical race-baiting politics at its very worst. Holder has a zero-percent chance of success in this lawsuit. The Supreme Court has spoken, and the federal district courts in Texas are bound by the Shelby County decision, as is the U.S. Court of Appeals for the Fifth Circuit, which includes Texas.
If this case goes all the way back to the Supreme Court, Roberts and the other justices are likely to see this action for what it is, a lawless rebellion against both Congress’ power to legislate and the Supreme Court’s overriding power to declare government actions and laws unconstitutional.
So Holder cannot win in court. All he can do is try to create a national narrative that somehow Texans are engaged in racist voter suppression and whip up the black and Hispanic communities to rally to his (and Obama’s) side as they fight Republicans.
Shame on Attorney General Holder. He is sworn to uphold the rule of law. By his actions today, he undermines that rule of law and provokes racial tensions in this country. That–not the Supreme Court–is what is causing a “serious setback” in voting rights.