Holder vows to force Texas into pre-clearance despite Supreme Court ruling on VRA

posted at 12:01 pm on July 25, 2013 by Ed Morrissey

The Attorney General’s approach to the enforcement of law at least has the virtue of novelty.  Usually, the Department of Justice abides by Supreme Court rulings on matters of law, especially when it strikes down statutes that — at least in theory — prevent the government from enforcing them.  If the Obama administration can ignore existing statutory law on the employer mandate for ObamaCare, though, perhaps the DoJ can enforce statutory laws that no longer exist.

I wonder if the federal courts will be willing to go along with that:

The Justice Department is preparing to take fresh legal action in a string of voting rights cases across the nation, U.S. officials said, part of a new attempt to blunt the impact of a Supreme Court ruling that the Obama administration has warned will imperil minority representation.

The decision to challenge state officials marks an aggressive effort to continue policing voting rights issues and follows a ruling by the court last month that invalidated a critical part of the 1965 Voting Rights Act. The Justices threw out a part of the act that required certain states with a history of discrimination to be granted Justice Department or court approval before making voting law changes.

In the coming weeks, Attorney General Eric H. Holder Jr. is expected to announce that the Justice Department is using other sections of the Voting Rights Act to bring lawsuits or take other legal action to prevent states from implementing certain laws, including requirements to present certain kinds of identification in order to vote. The department is also expected to try to force certain states to get approval, or “pre-clearance,” before they can change their election laws.

“Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to pre-clearance as necessary,” Holder said in a speech Thursday morning in Philadelphia. “My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”

Holder’s problem here, though, is that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated.  The court left Section 5 in place, which has the enforcement mechanisms for the DoJ to use if Congress provides a rational formula for singling out states and other jurisdictions for the intrusive level of scrutiny pre-clearance imposes.  However, with Section 4 invalidated, the DoJ literally has no jurisdiction at all to use Section 5 any longer anywhere, not until Congress provides it.

What Holder proposes to do is to tell Texas to get DoJ approval for its voting (and redistricting) laws before putting them in force, right after the Supreme Court told Texas and the other Section 4 states that they don’t need to do so.  Holder can file a lawsuit to attempt to force compliance, but that’s just bluster. Texas isn’t going to comply, and it’s doubtful a federal court would do anything but laugh at the filing after the ruling last month.  The DoJ has no more jurisdiction to tell Texas to get pre-approval for laws passed under its own sovereignty.  This is grandstanding on a particularly demagogic scale.

Holder’s statement is nonsense on another level, too. The DoJ can enforce anti-discrimination laws under the Voting Rights Act, especially under Section 2 — but just like with the parts of the US that didn’t fall under Section 4 the last 50 years, the DoJ has to wait until actual discrimination takes place.  That shifts the burden of proof to the DoJ to prove guilt, where it belongs, instead of onto the handful of jurisdictions to prove themselves innocent of discrimination before a law even gets applied.

The Attorney General has plenty of law on which to pursue discrimination when it arises.  Perhaps he ought to just stick to doing that.


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At this poiint, the more Holder pushes, the more of SCOTUS he will lose.

He doesn’t mind. His Twenty-Day Hates are meant to polarize the country, and if the country is polarized over SCOTUS, so much the better.

njcommuter on July 25, 2013 at 1:22 PM

Why hasn’t this lawless SOB been impeached already?

AZCoyote on July 25, 2013 at 1:14 PM

Why hasn’t he been arrested? Why haven’t any of the office holders that refuse to uphold state or federal laws been removed from office? We are at the whim of the law of the moment based on leftest views.

Dr. Frank Enstine on July 25, 2013 at 1:24 PM

Gee, I wonder if Stedman would have the temerity to get Ø to send in Federal troops to enforce a flawed Federal policy. Wouildn’t it be just like those thugs to do that?
.
L_A_W_L_E_S_S

ExpressoBold on July 25, 2013 at 1:28 PM

At this poiint, the more Holder pushes, the more of SCOTUS he will lose.
njcommuter on July 25, 2013 at 1:22 PM

Like he or BO gives a sh!t. We have a country that is becoming or already has become a banana republic and apparently the majority of our citizens are just fine with it. All it took was a 50 years of brainwashing by our education system and a bunch of two bit race hustlers. We are done as a country.

Dr. Frank Enstine on July 25, 2013 at 1:30 PM

Dr. Frank Enstine on July 25, 2013 at 1:24 PM

We have gone from Lex Rex, the law is king, to Rex Lex the King is law. Welcome to the easily predicted end product of the enlightenment.

chemman on July 25, 2013 at 1:33 PM

Holder’s problem here, though, is that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated. The court left Section 5 in place, which has the enforcement mechanisms for the DoJ to use if Congress provides a rational formula for singling out states and other jurisdictions for the intrusive level of scrutiny pre-clearance imposes. However, with Section 4 invalidated, the DoJ literally has no jurisdiction at all to use Section 5 any longer anywhere, not until Congress provides it.

That’s merely the conventional wisdom. The Lawgivers-In-Black and their toadies in the JustUs Department see the elimination of the formula as a license to implement the enforcement everywhere they want.

Steve Eggleston on July 25, 2013 at 1:39 PM

Straws

Bmore on July 25, 2013 at 1:43 PM

That’s merely the conventional wisdom. The Lawgivers-In-Black and their toadies in the JustUs Department see the elimination of the formula as a license to implement the enforcement everywhere they want.

Steve Eggleston on July 25, 2013 at 1:39 PM

The problem for Holder is that Section 4 put the burden of proof on the state to prove it was not racist. He could get an injunction to stop most anything under section 4, because there was a presumption of racism for the enumerated states.

Under Section 5, IIRC, the burden of proof is on the government, including the need for a temporary or permanent injunction. That’s not to say that Obama’s federal judicial appointments won’t have a lot of sympathetic judges, but still Holder has to come up with something other than these allegations of continuing Texas racism.

.

Wethal on July 25, 2013 at 1:54 PM

Why even have laws?

libfreeordie on July 25, 2013 at 12:02 AM

Schadenfreude on July 25, 2013 at 1:57 PM

Unbelievable. Worst AG ever…

changer1701 on July 25, 2013 at 2:01 PM

Texas AG Abbott has been quoted as saying, “What I really do for fun is I go into the office and sue the Obama administration”.

WestTexasBirdDog on July 25, 2013 at 2:08 PM

Gee, I wonder if Stedman would have the temerity to get Ø to send in Federal troops to enforce a flawed Federal policy. Wouildn’t it be just like those thugs to do that?
.
L_A_W_L_E_S_S

ExpressoBold on July 25, 2013 at 1:28 PM

I had posted quite some time ago that at some point within the next ten years, some red state governor is going to end up marshalling his National Guard and State Police forces at the border in order to defend against some federal over-reach.

We may have to accelerate that ten-year timeline…

CaptFlood on July 25, 2013 at 2:14 PM

Love the ‘Stedman’ comment, by the way. Spot on!

CaptFlood on July 25, 2013 at 2:15 PM

Gee, I wonder if Stedman would have the temerity to get Ø to send in Federal troops to enforce a flawed Federal policy. Wouildn’t it be just like those thugs to do that?
.
L_A_W_L_E_S_S

ExpressoBold on July 25, 2013 at 1:28 PM

Stedman. That’s rich.

HiJack on July 25, 2013 at 2:15 PM

I had posted quite some time ago that at some point within the next ten years, some red state governor is going to end up marshalling his National Guard and State Police forces at the border in order to defend against some federal over-reach.

We may have to accelerate that ten-year timeline…

CaptFlood on July 25, 2013 at 2:14 PM

I live in an area where we are having months of flyovers by US Army helicopters nightly. It’s happening in other areas of the country, too. So much for marshaling troops on the border. Would our servicemen and women really strike against the population under orders?

HiJack on July 25, 2013 at 2:18 PM

Well, it is going to be really tough to turn Texas blue if dead people aren’t allowed to vote.

bitsy on July 25, 2013 at 2:22 PM

Under Section 5, IIRC, the burden of proof is on the government, including the need for a temporary or permanent injunction. That’s not to say that Obama’s federal judicial appointments won’t have a lot of sympathetic judges, but still Holder has to come up with something other than these allegations of continuing Texas racism.

.

Wethal on July 25, 2013 at 1:54 PM

You underestimate the ability of Lawgivers-In-Black to “massage” the law.

Steve Eggleston on July 25, 2013 at 2:35 PM

Department Ministry of Justice

Seven Percent Solution on July 25, 2013 at 2:45 PM

It is going to be interesting to see what happens when Holder convinces Obama to call in the national guard in order to prevent Texas from implementing its laws.

senor on July 25, 2013 at 2:51 PM

So, reading up with some lawyer blogs, it turns out Section 3 of the VRA (the section Holder intends to use ) requires INTENTIONAL bias, not just the appearance of bias or the statistical probability of bias.

Holder will get spanked.

sentinelrules on July 25, 2013 at 2:54 PM

Holder. Go pound sand.

TerryW on July 25, 2013 at 2:57 PM

I notice that he cherrypicked which Federal court he would go through and he has chosen San Antonio which he knows is a liberal stronghold full of Mexican citizens posing as Americans.

They will probably go along with him on this.

If Boner and the rest of the stupid party allow amnesty then stick a nail in Texas, cause we will be bluer than blue.

neyney on July 25, 2013 at 3:18 PM

In reality – how does Holder enforce this?

He can’t. SO ignore it. If he gets some toady judge to get him an injunction pronounce loudly, we do not accept this judges ruling on the matter and there will be no action on this injunction – it is null and void.

What does he do then? States affirm their right to determine their election rules. That is from the constitution. The SCOTUS has said section 4 is null and void.

Just say no. Holder cannot do anything about it.

Zomcon JEM on July 25, 2013 at 3:19 PM

I just saw the new issue of Texas Monthly, and guess who’s on the cover? Wendy Davis with her shoes, and the Castro brothers.

A fight with Holder will mean more money for Abbott’s campaign coffers.

juliesa on July 25, 2013 at 3:31 PM

Come and Take it!

WhaleBellied on July 25, 2013 at 4:00 PM

I had posted quite some time ago that at some point within the next ten years, some red state governor is going to end up marshalling his National Guard and State Police forces at the border in order to defend against some federal over-reach.

We may have to accelerate that ten-year timeline…

CaptFlood on July 25, 2013 at 2:14 PM

Or more of this:
http://sacramento.cbslocal.com/2013/06/21/el-dorado-county-sheriff-strips-forest-service-of-state-law-enforcement-power/

cptacek on July 25, 2013 at 4:01 PM

Funny thing, I’m reading a history of the English Tudor dynasty and it’s amazing the parallels happening now to then, especially Henry VIII’s era.

Bishop on July 25, 2013 at 12:24 PM

I read historical fiction about that era, and what I never could understand, until around 2009, was that new kings would come to power, everyone would love and cheer the new King, and then 6 months later, the people had turned and it got ugly again. Obama demonstrated to me how that could realistically happen.

cptacek on July 25, 2013 at 4:03 PM

The Attorney General has plenty of law on which to pursue discrimination when it arises. Perhaps he ought to just stick to doing that.

Right. See panthers, black.
BacaDog on July 25, 2013 at 12:11 PM

In Texas…?

Good luck with that.

CPT. Charles on July 25, 2013 at 12:29 PM

BacaDog was referencing the Black Panther case in Philly that Holder dropped.

cptacek on July 25, 2013 at 4:04 PM

So, reading up with some lawyer blogs, it turns out Section 3 of the VRA (the section Holder intends to use ) requires INTENTIONAL bias, not just the appearance of bias or the statistical probability of bias.

Holder will get spanked.

sentinelrules on July 25, 2013 at 2:54 PM

That’s why the Libs loved section 4. No evidence of racism needed. Guilt on the part of Southern states was written into the law.

Wethal on July 25, 2013 at 4:40 PM

Funny thing, I’m reading a history of the English Tudor dynasty and it’s amazing the parallels happening now to then, especially Henry VIII’s era.

Bishop on July 25, 2013 at 12:24 PM

I’m sure Obama has some lawyer trying to figure out right now how to dissolve the monasteries, I mean churches, and confiscate their wealth. :)

Wethal on July 25, 2013 at 4:45 PM

Liberals think they have a chance in Texas, it’s only fat chance they have. Every time Holder, Davis, or Obama stick a finger in the eye of conservative Texas they get punched in the nose.

Tater Salad on July 25, 2013 at 4:49 PM

Ah yes… Philadelphia. Where no Federal watchdogs are needed as Black Panthers boot out Republican voting officials for a “truly” fair election at the voting booths.

Holder, you can **** my ****.

Turtle317 on July 25, 2013 at 5:03 PM

If you want to preserve the American legal system….

Vote every Democrat OUT OF OFFICE at the Federal, State and Local levels!

wren on July 25, 2013 at 8:41 PM

I had posted quite some time ago that at some point within the next ten years, some red state governor is going to end up marshalling his National Guard and State Police forces at the border in order to defend against some federal over-reach.

We may have to accelerate that ten-year timeline…

CaptFlood on July 25, 2013 at 2:14 PM

I would love to see some governor proclaim eminent domain on all buildings that house a federal agency or court, and then evict all of them.

Nutstuyu on July 25, 2013 at 10:00 PM

Holder’s problem here, though, is that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated. The court left Section 5 in place, which has the enforcement mechanisms for the DoJ to use if Congress provides a rational formula for singling out states and other jurisdictions for the intrusive level of scrutiny pre-clearance imposes. However, with Section 4 invalidated, the DoJ literally has no jurisdiction at all to use Section 5 any longer anywhere, not until Congress provides it.

Ed,

Not sure if anyone has pointed this out, but the DOJ will likely rely on Section 3 of the VRA — not Section 4. Section 3 is a “bail in” provision that allows federal courts to impose the pre-clearance requirement on certain regions, though that pre-clearance is often of a relatively limited scope. Section 3 was not struck down by the Supreme Court in Shelby County and so it is not a Holder’s “problem here…that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated.”

I think it is probably worth updating your post to reflect that fact. I suggest having AP do the legal posts in the future.

righty45 on July 26, 2013 at 8:09 PM

Obama is becoming the Fuhrer of the fourth Reich every day and Holder I believe is becoming Himmler. Some local law enforcement agencies resemble the Nazi Gestapo and/ or the SS (According to a story right here on Hotair). Then PMSNBC has the gall to claim that libertarians and/or conservatives are responsible for Detroit going broke (Again story posted on Hotair) These idiots wrapped in morons must think that all of us have partaken of the Obama Kool Aid. All I have to say is let these Ba$turd$ feed on themselves.

hamradio on July 27, 2013 at 2:20 AM

Ed,

As others here have noted, Holder intends to use Section 3 of the VRA, which requires a finding of “intentional discrimination.” Holder thinks he can get such a finding against Texas because Texas submitted its redistributing plan for Section 5 pre-clearance last year not to the DofJ but (under a not-well-known VRA option) to a three-judge panel in DC. Holder said that evidence submitted to that court that the Texas Legislature had intentionally discriminated against Hispanics when redrawing district lines was sufficient to reimpose on that state the “preclearance” safeguard. The court blocked the map, saying the parties had “provided more evidence of discriminatory intent than we have space, or need, to address here.” Here’s a link to the panel’s findings:

https://docs.google.com/file/d/0BxeOfQQnUr_gU0NLZFRwdkZnNjg/preview?pli=1

Holder, and those in the media eager to agree with him, seem to have the analysis all wrong. The reason the panel didn’t “need” to review all the evidence was that Section 5 is so heavily weighted against local governments listed under Section 4, which has subsequently been voided by the SCOTUS. Section 3 does not provide for such weighting. Moreover, the panel was not functioning as a trial court, but as a discretionary stand-in for the DofJ. So collateral estoppel and the like will not apply to its findings in any Section 3 action. That’s probably why Holder is talking about using the “same evidence” rather than directly appealing to the panel’s findings.

In short, Holder will probably lose his Section 3 action, and the findings of that three-judge panel will probably be completely irrelevant. As usual for the current AG, he’s blathering.

KenMcK on July 27, 2013 at 7:25 PM

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