If you believe a handful of Texas Republicans, Attorney General Eric Holder’s new effort to enforce the Voting Rights Act in their state and elsewhere brazenly defies the Supreme Court, which struck down part of the law in June. “This end run around the Supreme Court undermines the will of the people of Texas,” Gov. Rick Perry said.
“The Supreme Court message to the Justice Department was clear — don’t mess with Texas,” Rep. Lamar Smith insisted. “But Eric Holder and the Justice Department aren’t listening.”
It would be amazing if that’s actually what Chief Justice John Roberts and the court majority said. But, in reality, the attorney general’s move to use the Voting Rights Act provisions the Supreme Court left in place is perfectly consonant with the ruling, and not just in a technical sense. It also comports with the court’s logic. Anyone who says otherwise didn’t read it, didn’t understand it, or didn’t let that stop him. Lamar Smith apparently confused the 24-page decision with an asinine bumper sticker.
The Voting Rights Act has a lot of parts to it. The Supreme Court only picked away at one. It did not say that the Justice Department — or others, for that matter — could no longer file suits to challenge discriminatory election laws. So Holder is promising to do that, starting with a case in Texas. Nor did the justices say that the policy of forcing some states, counties, towns or other jurisdictions to undergo special scrutiny before enacting new voting rules — known as pre-clearance — is unconstitutional. So the attorney general is pledging he will ask a federal court to require that of Texas, which perpetually disregards the Voting Rights Act’s restrictions.
The court simply objected to how Congress had determined which jurisdictions to single out before its ruling. Lawmakers used an old formula that the majority found to be obsolete. Congress can write a new formula, if it wants. And even if that doesn’t happen, federal courts can place pre-clearance requirements on jurisdictions with recently troubled civil rights records. That didn’t happen a lot when Congress’s formula was in place. But now the attorney general appears ready to ask judges to exercise their powers more often.
At best, criticism that Holder is “trying to skirt the Supreme Court law,” as Rep. Kevin Brady puzzlingly put it, relies on little more than mind-reading the justices to extract a conclusion well beyond the text of their ruling. “The court has already telegraphed that the Voting Rights Act is constitutionally infirm,” Rep. Blake Farenthold said, according to The Hill. Telegraphed? Even if the chief justice sent Farenthold a singing candygram via land-shark, it wouldn’t change the fact that Roberts and his colleagues actually ruled in a particular way, one that allows for everything Eric Holder is doing.
Debating the value of pre-clearance nearly 50 years since the Voting Rights Act first passed is healthy for the country. Texas Republicans’ rhetoric isn’t.