DOJ Decides to Mess with Texas

So the big Voting Rights Act news of the day is that the Department of Justice will be asking a court to “bail in” the state of Texas for preclearance under the Voting Rights Act. (This involves a separate provision of the Voting Rights Act, Section 3, codified at 42 U.S.C. 1973a(c).)

Rick Hasen has a long post about the DOJ action and why he thinks it’s important. An excerpt:

[B]ail-in is a lot better than nothing. It could stop Texas’s very tough voter id law, which would require people without id to travel up to 125 miles each way at their own expense to get an id. Student ids are not allowed but concealed weapons permits are. You get the idea.

DOJ doing this shows it will be aggressive in enforcing voting rights. But if DOJ gets bail in, it seems pretty clear, as Lyle Denniston has shown, that Texas will attack this in court, likely ending up at the U.S. Supreme Court if the lower court grants bail in. It will be an interesting choice for Justice Kennedy as to what to do in a case where equal sovereignty is violated, but upon proof of intentional discrimination in voting.

One thing I’d add, though: Hasen seems to assume that if Texas is bailed in and the case goes to the Supreme Court, Justice Kennedy will be the marginal vote. But supporters of bail-in might also want to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent, he wrote:

For reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would not, however, abandon the requirement that Congress may impose prophylactic §5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations. … When those [and other] requirements have been met, however, I shall leave it to Congress, under constraints no tighter than those of the Necessary and Proper Clause, to decide what measures are appropriate under §5 to prevent or remedy racial discrimination by the States.

If DOJ can make a sufficient showing that “there has been an identified history of relevant constitutional violations” in Texas, they ought to get Justice Scalia’s vote.

UPDATE: Rick Hasen responds:

I wrote a lot about Justice Scalia’s statement in Lane and its relevance to the VRA in this piece. But my sense from NAMUDNO and Shelby County is that the Justice has abandoned those positions. (Remember the “Racial entitlement” talk?)

His statements at oral argument aside, I think Justice Scalia’s positions can be reconciled with his votes in the VRA cases — notice that neither decision explicitly applies the Boerne standard, and that both rely on the mismatch between the statute’s coverage and the “identified history of relevant constitutional violations” in “particular States.” But I agree that if Texas gets bailed-in, we’re likely to find out what Justice Scalia thinks!