SAN ANTONIO — In a move that shows the Voting Rights Act still has some teeth after the recent U.S. Supreme Court ruling, a federal court in San Antonio is permitting the Obama administration to join in a challenge to the Texas redistricting case.
In a 2-1 decision, the federal court entered the order Tuesday allowing the Justice Department into the Texas redistricting case as an intervenor.
Now as a participant in the case the DOJ can bring many more resources to the ongoing legal battle against the State of Texas, and that outcome will certainly be seen as deciding the future and strength of the Voting Rights Act as it stands today.
The court majority ruled the Justice Department met the standards for intervention under the 'government officer or agency' provisions of Rule 24 and that the request was not untimely since according to the Tuesday ruling:
Although the proposed Complaint in Intervention asserts claims under § 2 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments, the United States' interest lies primarily in the § 3(c) relief tied to those claims, and its effect on the United States' administration of § 5. Prior to the decision in Shelby County, there was no need for consideration of § 3(c) because Texas was automatically covered by § 5 ... [B]efore Shelby County, the United States' interest was focused on the § 5 litigation in the D.C. Court ... However, after Shelby County, circumstances changed significantly, since § 3(c) became an issue for the first time ... The United States has a direct interest in the construction and application of § 3(c) that was not present until after the Shelby County ruling.
When the U.S. Supreme Court first delivered its ruling in Shelby Co. v. Holder, which removed Section 5 of the Voting Rights Act until Congress could devise a new means test for states to fall under federal protection for minority voters, many speculated that the Voting Right Act was now powerless.
Since then U.S. Attorney General Eric Holder proposed that Section 2 and Section 3 together continues to provide the DOJ the authority it needs. This court decision will likely be fought up the judicial ladder to the Supreme Court but passing this rung was seen as a surprising victory for voting rights advocates.
Texas State Rep. Trey Martinez Fisher tweeted out he was "pleased" with the decision.
Nevertheless opposition to use of the Voting Rights Act in this unorthodox and inventive way does face legal challenges. According to the website TXREDISTRICTING.org, which is written by Texas election law attorney Michael Li:
Circuit Judge Jerry Smith is the dissenting vote. He is arguing that DOJ's request to intervene was untimely since it filed a statement of interest in the case in the fall of 2011 in the context of hearings to draw interim maps but "made no effort to intervene" at that time.
In its 2011 Statement of Interest, [DOJ] presented its 'position that both the Congressional and State House plans were drawn with discriminatory purpose' Now, it seeks to impose a preclearance requirement based on that same claim of discriminatory intent. The fact that the theory is now pursued through Section 3(c) instead of the now defunct Section 4(b) is irrelevant.
Judge Smith also questioned whether intervention would be helpful, arguing that DOJ could participate in the case through amicus (i.e. friend of the court) briefs.
