Updating our story on Attorney General Eric Holder declaring war on Texas:
Section 5 of the Voting Rights Act (VRA) creates a preclearance regime, under which certain states with records of egregious racial voter discrimination cannot change any voting law or procedure or draw new legislative districts after each census without advance permission of the U.S. Department of Justice (DOJ) or a federal court in Washington, D.C.
In Shelby County v. Holder, the Supreme Court held that the current formula in VRA Section 4 defining which states are subject to preclearance was so outdated that it was irrational–and thus unconstitutional. The Court left Section 5 intact but made it so that no states were subject to Section 5 until Congress wrote a new Section 4 based on current data justifying such a severe burden on federalism and treating some states differently from others.
As we reported previously, Holder is seeking a court order forcing Texas back into the preclearance system. Although the Supreme Court indicated only Congress could develop such a new formula, and Congress has not done so, Holder is attempting to use Section 3 of VRA to recapture Texas without any congressional action.
On Aug. 5, Texas Attorney General Gregg Abbott and his team filed their opposing brief against Holder’s DOJ. They argue that Section 3’s “bail-in” procedure requires the DOJ to show serious instances of racially-motivated discrimination before a court could take such drastic action. It also argues that the Court has suggested Section 5 might itself now be unconstitutional. In fact, in Shelby County Justice Clarence Thomas wrote separately, saying the Court should invalidate Section 5, not just Section 4’s formula as to which states fall under Section 5.
The case is pending before a three-judge panel in San Antonio. The case is Perez v. Texas.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.