The Washington PostDemocracy Dies in Darkness

The Justice Department’s voting rights gambit, and what it means

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The Justice Department on Thursday announced that it is fighting back after the Supreme Court effectively invalidated part of the Voting Rights Act.

In its first step, Justice signaled that it would support a lawsuit against Texas's GOP-drawn redistricting plan and seek to get a federal judge to require the state to continue to obtain pre-clearance for any electoral changes -- as it did before part of the VRA was struck down. Justice is also expect to sue to stop Texas's new Voter ID law.

The move is a significant one, for a few reasons.

First, it signals that the Obama administration is not going to wait and cross its fingers hoping Congress will replace the VRA language that was struck down.

The Supreme Court struck down the formula that determines which states and areas with a history of racial discrimination are required to gain pre-clearance for electoral changes -- effectively rendering pre-clearance inoperable until a new formula is established.

In its decision, the court noted that Congress can simply replace the formula with a new one.

Of course, anybody watching Washington these days knows that's not going to happen any time soon. Such a formula would need to pass in the GOP-controlled House and overcome a filibuster in the Senate. And given that the American people are pretty evenly split on the Voting Rights Act, there's very little impetus for action.

Using Texas as its first target, the Justice Department is effectively trying to determine which states can be made to require pre-clearance without the formula.

"No matter what happens with (Texas), it makes the chances of Congress passing a new coverage formula even less than they’ve been," wrote Rick Hasen, an election law expert at the University of California Irvine.

Second, a big Voter ID battle is coming.

Texas is moving forward with its Voter ID law after the Supreme Court's decision, and North Carolina is set to pass one of the strictest laws in the country. Both appear to be in the Justice Department's crosshairs.

Without pre-clearance, the Justice Department needs to make a more public and difficult effort to combat these new laws, which have been passed in several states controlled by Republicans, but also Democratic Rhode Island.

Given the number of states moving in that direction and the high-profile legal battles that are forming in Texas and North Carolina, the issue may be on a trajectory for the Supreme Court.

And lastly, we're about to hear a lot more about a relatively obscure part of the VRA: Section 3.

While Sections 2 and 5 are the most oft-cited parts of the VRA -- the ones governing majority-minority districts and pre-clearance, respectively -- and Section 4 is what the Supreme Court struck down, Section 3 has to this point been little-known and little-used.

Basically, Section 3 allows for the Justice Department to ask a judge to require a state or jurisdiction that doesn't otherwise meet the (now void) pre-clearance formula to be forced to obtain pre-clearance -- a process known as a "bail in."

It has been used in the past, including on Arkansas and New Mexico, but is a very tough case to make for the Justice Department -- essentially because it requires the government to show deliberate discrimination.

The question is whether that case becomes easier to make in jurisdictions that previously were required to get pre-clearance under the now-struck-down formula.

Texas will be the first test case.