The coming conflicts reflect, in part, the decades-old tension between state and federal powers. Texas Gov. Rick Perry hit this nail on the head when he complained that the Justice Department seeks to “obstruct the will of the people of Texas.” The coming conflicts reflect, as well, political motives that are cast in dramatically different lights.
The stricter laws described by Republicans as a way to protect voting integrity are described by skeptics as an attempt to suppress minority voters who are predominantly Democrats. In turn, the Justice Department legal actions described by Attorney General Eric Holder on Thursday as an effort to “prevent voter disenfranchisement” were recast by Texas Republican Sen. John Cornyn as a blatant attempt to “turn our state blue.”
The Supreme Court set everything in motion June 25, in a case called Shelby County v. Holder, in which the Alabama county south of Birmingham sued Holder over the constitutionality of parts of the Voting Rights Act.
The court’s 5-4 decision struck down the “coverage formula” section that determines which states and local jurisdictions require prior Justice Department approval before making electoral changes, from redrawing political boundaries to setting voting requirements. This is called preclearance.
Nine states had to submit to preclearance under the coverage formula struck down by the court: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia. Selected jurisdictions in seven states were also covered by the old formula, including parts of California, Florida, North Carolina, Michigan, New Hampshire, New York and South Dakota.
“Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions,” Chief Justice John Roberts Jr. wrote.
Until Congress rewrites the law, the court’s decision effectively frees states from needing prior approvals. One result, Tokaji predicted, is “there will be a great effort on the part of some states to impose new barriers to voting.”
That could change. As Roberts noted, “Congress may draft another formula based on current conditions.” The key word is “may.”
Some want Congress to wade in. The California state Senate on Thursday passed a resolution urging Congress to replace the missing preclearance coverage formula; the absence of which, Democratic state Sen. Leland Yee of San Francisco said, “has already made voting more burdensome and less accessible throughout the country.”
The legislative task, though, was tough enough even before the Justice Department acted. Now, some caution it could be impossible.
Republican Rep. James Sensenbrenner of Wisconsin, a key author of the last Voting Rights Act revisions, warned Holder this week that his lawsuits would exacerbate partisan tensions and undermine coalition-building in the GOP-controlled House of Representatives.
“The lawsuit would make it much more difficult to pass a bipartisan fix to restore the heart of the (Voting Rights Act),” he predicted in a statement.
An alternative view is that Republicans and Democrats alike already have figured out that Congress is unlikely to move voting rights legislation anytime soon. Democrats, then, have nothing to lose and potentially some symbolic and substantive victories to gain in court, while Republicans now have their own reasons to rally.