EVER wondered what happens when the tortuous meets the fatuous? Let's find out.
Last month Eric Holder, the attorney-general, asked a district court to make Texas "pre-clear" any proposed changes to its election procedures with the federal government. Texas was doing this as a matter of course in every election for the last 40 years: it was subject to Section 5 of the Voting Rights Act (VRA). That section requires jurisdictions with a history of discrimination against minority voters to get approval from either the Justice Department or a federal district court in Washington, DC before changing their election procedures to ensure those changes have "neither discriminatory purpose or effect". But the Supreme Court's ruling in Shelby County v Holder last June made Section 5 vestigial. The court found that the formula used to determine which jurisdictions must pre-clear changes was outdated, but it did not, as some VRA opponents had hoped, find Section 5 a violation of the tenth amendment.
Hence Mr Holder's turn to the previously little-used (because little-needed) Section 3 of the VRA, which lets courts mandate pre-clearance for jurisdictions found to be violating the 14th- or 15th-amendment guarantees of equal protection and access to the ballot. In this case, Mr Holder argues, the violation stems from state redistricting plans proposed in 2011—plans that a federal court already rejected, saying that they "provided more evidence of discriminatory intent than [the Court had] space, or need, to address." The Texas Republicans in charge of redistricting did almost everything wrong that a jurisdiction could do, short of imposing literacy tests or poll taxes. They gerrymandered black and Hispanic districts, presumably to dilute their votes; they excluded minority lawmakers from the redistricting process; and despite dramatic growth in the state's Hispanic population, they failed to create "any new House districts in which minority voters would have the chance to elect their preferred candidate". So Texas abandoned those plans and came with new ones. Mr Holder still used those first plans—as well as Texas's remarkable gift for repeatedly, since 1970, coming up with redistricting plans that violate the VRA—as the basis for his request for pre-clearance.
Last week Greg Abbott, the attorney-general of Texas, filed his response, and it is a doozy. He notes, correctly, that the redistricting plans are moot, and have resulted in no violations of the 14th and 15th amendments. Fair enough. He then writes that the Shelby County ruling "makes clear that the extreme sovereignty-infringing remedy of pre-clearance is constitutionally suspect" and applies "only to cases where more traditional remedies have proven demonstrably adequate, as in the south in 1965". And he calls Mr Holder's allegations of discrimination "baseless...[R]edistricting decisions were designed to increase the Republican Party's electoral prospects at the expense of the Democrats... [They] were motivated by partisan rather than racial considerations and the plaintiffs and DOJ have zero evidence to prove the contrary."
Bear in mind that Mr Abbott appears to be running for governor; this response will play well with the party faithful. Beyond electoral considerations, however, that is a wonderfully brazen defence of gerrymandering Mr Abbott offers. Rarely does one see political gamesmanship admitted so openly, and I have to admit it's kind of refreshing to hear a politician decline to even pay lip-service to fairness. Mr Abbott seems to think that the VRA allows him to abrogate minority voting rights as long as he does so for partisan rather than overtly, provably racial reasons. As a matter of history, I might point out that voting discrimination did not happen "in the south in 1965". It happened in the election of 1964. And 1962. And 1960. And 1958. And in every single election since the founding of the United States except for those few years during Reconstruction when federal troops made sure that some southerners did not have their constitutional right to vote violently kept from them because of an excess of melanin.
That said, Mr Abbott's interpretation of the Supreme Court's Shelby County ruling is not quite right. They, like every previous Supreme Court that has upheld the VRA, noted that Section 5 involves an unusually broad exercise of federal power. But "constitutionally suspect" is not the same thing as "unconstitutional", and laws are only invalid when the court finds the latter. In Shelby County they had the opportunity to reach just such a finding, but declined. Also, I wonder whether Mr Abbott has read Section 5: Mr Holder does not have to prove discriminatory intent, only discriminatory effect. Mr Abbott tries mightily to show that white Democrats such as Wendy Davis and Lloyd Doggett (whose district, Mr Abbott explains, "was completely dismantled in an effort to drive him from office"—italics 100% his) were affected just as badly as black and Hispanic Democrats. But of course the harm in redistricting is done not to politicians (or not only to politicians); it is done to voters, and the VRA is principally concerned not with keeping incumbents in safe seats but in making sure that everyone can vote and that everyone's vote is equal. Because blacks and Hispanics tend to vote Democratic more often than whites, extreme partisan redistricting runs a high risk of having discriminatory effects (yet another argument in favour of California-style non-partisan redistricting commissions, but that is a subject for another post). The sooner Republicans start competing for black and Hispanic votes and stop trying to keep blacks and Hispanics from voting, the better their and America's future.
