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Attorney General Holder Says Texas Should Get Approval for Election Rule Changes

July 25, 2013 at 12:00 AM EDT
Attorney General Eric Holder is pushing for ongoing scrutiny of Texas' voting laws despite a Supreme Court ruling striking down the pre-clearance provision of the Voting Rights Act. Judy Woodruff talks to Hans von Spakovsky of the Heritage Foundation and Nina Perales of the Latino legal civil rights organization MALDEF.
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JUDY WOODRUFF: The Obama administration today challenged voting laws it says discriminate on the basis of race.

Attorney General Eric Holder made the announcement in Philadelphia before a meeting of the National Urban League, pledging to focus first on Texas.

ATTORNEY GENERAL ERIC HOLDER: We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve.

 JUDY WOODRUFF: The attorney general’s declaration signaled the Justice Department’s first move to protect minority voters since the Supreme Court invalidated part of the landmark Voting Rights Act last month. In its 5-4 decision, the court in effect removed a critical provision requiring states with a long history of voter discrimination to get federal approval prior to any changes in voting practices.

 But, today, Eric Holder said his department would rely on surviving portions of the act.

ERIC HOLDER: We plan, in the meantime, to fully utilize the law’s remaining sections to ensure that the voting rights of all American citizens are protected. My colleagues and I are determined to use every tool at our disposal to stand against discrimination wherever it is found.

JUDY WOODRUFF: And with respect to Texas, he said the state’s recent history could still make it subject to federal pre-approval.

ERIC HOLDER: Based on the evidence of intentional racial discrimination that was presented just last year in the redistricting case of Texas v. Holder, we believe that the state of Texas should be required to go through a pre-clearance process whenever it changes its voting laws and practices.

JUDY WOODRUFF: Still, Holder pressed Congress to take bipartisan action to reinstate pre-clearance requirements.

ERIC HOLDER: It’s incumbent upon congressional leaders from both parties to guarantee that every eligible American will always have equal access to the polls, to ensure that we will never turn our back on the hard-won progress of the last hundred years, and to consider new solutions that are equal to the challenges of the 21st century.

JUDY WOODRUFF: But the governor of Texas, Rick Perry, criticized the DOJ’s move.

His statement said — quote — “Once again, the Obama administration is demonstrating utter contempt for our country’s system of checks and balances, not to mention the U.S. Constitution. This end-run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s commonsense efforts to preserve the integrity of our elections process.”

Officials in other Southern states once subject to pre-clearance are watching the Justice Department’s actions closely. Many, like North Carolina, have enacted or fast-tracked new voting eligibility rules in the wake of the Supreme Court’s decision.

For more on the implications of today’s news, we turn to Nina Perales, the vice president of litigation for MALDEF, the Mexican American Legal Defense and Educational Fund. The group is leading the legal challenge to some redistricting plans in Texas. And Hans Von Spakovsky, he is a senior legal fellow at the Heritage Foundation and he testified recently at a House Judiciary Committee hearing on the Voting Rights Act.

Welcome to both of you to the NewsHour.

So, Nina Perales, to you first. What do you make of the attorney general’s announcement today? How significant is this?

NINA PERALES, Mexican American Legal Defense and Education Fund: Well, we very much appreciate the announcement and the effort of DOJ to support our request in the Texas court that Texas be put under continuing supervision under the Voting Rights Act.

It’s sorely needed. Texas is the poster child for why we continue to need the protections of the Voting Rights Act. And I hope that DOJ’s effort is just the beginning of continued involvement enforcing voting rights in Texas.

JUDY WOODRUFF: Sorely needed, she’s saying. What’s your reaction?

HANS VON SPAKOVSKY, former federal election commissioner: Well, I’m not sure that that’s true.

But the point of this today is that it shows the critics of the Supreme Court’s decision that knocked out Section 5 of the Voting Rights Acts are wrong. This shows that there are still very powerful tools in the Voting Rights Act that the attorney general can use.

And, in fact, this is the right way to do it. Rather than having just blanket coverage of a number of states based on 40-year-old data, the Justice Department is going to have to go to court, convince a court and produce evidence that Texas has engaged in discriminatory conduct, and should be put under supervision based upon current conditions. And that’s the way it should be.

JUDY WOODRUFF: But you’re suggesting that’s a harder pull, a harder argument to make than it was before the Supreme Court ruling?

HANS VON SPAKOVSKY: Well, yes, but because the Texas was covered under Section 5 before the Supreme Court ruling based on data that was 40 years old. It was based on turnout information from the 1964, 1968, and 1972 presidential elections, whereas now, Justice will have to bring current evidence that they’re discriminating, and that they will continue to discriminate unless they’re put under court supervision.

JUDY WOODRUFF: So, Nina Perales, explain what the challenge is in Texas that the Justice Department is saying it’s going to support.

NINA PERALES:  Well, the challenge has largely been litigated. We filed suit against Texas.

And by we, I mean various civil rights organizations in Texas sued the state over their 2011 redistricting plans. We have been able to secure relief so far, and, at this point, the really important question in the case is whether Texas is going to be put under the continuing supervision of the Voting Rights Act.

I have to respond to Hans in saying that — in pointing out that Texas has not made it through a single redistricting round since the 1960s without one or more of its redistricting plans for the state being struck down as discriminatory, racially discriminatory against minorities. And that was certainly the case in this round as well, where two courts found racial discrimination problems with the state’s redistricting plan.

So we think that Texas is perfect for the kind of pre-clearance obligation that was removed in the Shelby decision by the Supreme Court, but which can be restored by our federal court here in Texas if it finds that the coverage is warranted.

JUDY WOODRUFF: So she’s saying Texas’ situation is perfect for the Justice Department to continue — for the federal government to continue to be involved under the surviving language in the Voting Rights Act.

HANS VON SPAKOVSKY: Well, it will be if they can prove intentional discrimination.

I mean, one of the problems with Section 5 was that it had an effects test. In other words…

JUDY WOODRUFF: And when we’re talking about Section 5, just so the audience understands, what are we talking about?

HANS VON SPAKOVSKY: Yes.

 Section 5 was a special provision of the Voting Rights Act passed in 1965, it was only supposed to last five years, that said that a small number of covered jurisdictions could not make any changes in their voting laws without getting the pre-approval of the federal government, either Department of Justice or a federal court.

And the coverage was based on having less than 50 percent turnout in these federal elections back in ’64, ’68, ’72. And the problem with the statute — one of the problems was that they never updated that formula, even though today blacks vote at higher rates in many of the covered states, and the other problem was it has an effects test.

In other words, there can be no intent to discriminate, no purposeful discrimination, and yet, if it supposedly has a disparate impact, then it violates the law.

JUDY WOODRUFF: So, bottom line here, Nina Perales, is — does the Justice Department action make it more — make it easier for you and others who are challenging redistricting, future redistricting decisions in the state of Texas, does it make it more likely that you will be successful?

NINA PERALES: Well, I think it’s always helpful when the Justice Department comes in and supports the position of voting rights advocates.

And I would also like to point out that I think it could be really critical in additional cases that are bound to be brought in Texas. We still are struggling with discrimination not just at the state level, but at the local level. DOJ recently denied pre-clearance, before the Supreme Court decision, to a redistricting plan in the area of Corpus Christi, Texas.

We have ongoing voting rights litigation in Houston. I was just meeting with somebody today over the Dallas City Council’s recent redistricting plan. So, it’s my hope that the Department of Justice doesn’t simply support our effort to get continuing coverage in Texas statewide, but also that they come in and help us address these discrimination issues that are popping up on the local level.

 JUDY WOODRUFF: Is what the Justice Department is doing healthy? You said a minute ago it’s better for them to do it under this provision than the one the court knocked down. But is this — is this healthy for American democracy? Is it — is it healthy for the federal government to be involved in potential voter discrimination?

 HANS VON SPAKOVSKY: Well, of course.

 Look, if there’s actual discrimination going on, then, yes, the Justice Department should be there trying to stop it and to remedy it. The problem is this law has been abused in many instances in the past, parts of the Voting Rights Act. A good example is the fact that they objected to South Carolina’s voter I.D. law, and it was really a frivolous objection.

 South Carolina had to spend $3.5 million in court to fight them, and they were successful, and they beat the Justice Department.

 JUDY WOODRUFF: Are you saying this Texas move is frivolous?

HANS VON SPAKOVSKY: I don’t know. I haven’t seen the evidence that they would fall within Section 3.

One thing to keep in mind is that Section 3 requires you to show that the state has violated the 14th and 15th Amendment rights of Texas residents. I haven’t seen the evidence yet that that has occurred.

JUDY WOODRUFF: How do you respond to that, Nina Perales?

NINA PERALES: We do have substantial evidence of racially discriminatory intent in the 2011 redistricting plans, and, in fact, a federal government in Washington, D.C., last year, pursuant to the pre-clearance provision, found that Texas had intentionally discriminated against minority voters in its state Senate plan, as well as the congressional plan, and found that the state had slid backwards in the state House plan.

Now, that decision was subsequently vacated by the Supreme Court following its decision in Shelby because of the changes now that the court has declared in the coverage provisions. But we have absolute confidence that the federal court in San Antonio, Texas, where we’re trying our case, is going to look at that evidence and come to the same conclusion as the court in Washington, D.C.

JUDY WOODRUFF: Final quick word from both of you.

Nina Perales, does what the attorney general announced today support you and what you’re doing in Texas?

NINA PERALES: Yes.

The attorney general’s announcement supports us, not just in the short term, in terms of some of the relief that we’re trying to get in Texas redistricting, but in the long term, we look forward to the support of the Justice Department in remedying all of the local violations that we fight here in Texas.

JUDY WOODRUFF: And how do you see that?

HANS VON SPAKOVSKY: Well, I hope she does get help, but I should point out that, for example, for the last five years, the Obama administration has only filed one lawsuit under Section 2 of the Voting Rights Act to try to stop voting discrimination. So they haven’t been very effective in enforcing other parts of the Voting Rights Act.

JUDY WOODRUFF: Well, we going to leave it there.

Hans Von Spakovsky, Nina Perales, thank you.

HANS VON SPAKOVSKY: Thank you.

NINA PERALES: Thank you.