Justice Department Keeps Up Pressure On Texas Voting Laws

POLITICS AND LEADERSHIP: Last month, the U.S. Justice Department asked a panel of judges in San Antonio to order continued scrutiny of Texas' voting procedures, despite the U.S. Supreme Court's ruling in June nullifying the requirement for the state to seek federal approval for any changes to its voting laws.

In that decision, the high court effectively voided Section 5 of the Voting Rights Act of 1965 by deeming the formula the federal government used to identify jurisdictions that must receive federal preclearance unconstitutional. But U.S. Attorney General Eric Holder Jr. said the Justice Department would rely on Section 3 of the law to keep Texas subject to preclearance for another 10 years instead. Section 3 imposes a tougher standard — evidence of intentional discrimination rather than merely a history of discrimination as with Section 5.

Holder said evidence of such discrimination had been presented in a case centering around the state's recent congressional redistricting.

"Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case...as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized, we believe that the state of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,'' he said in a speech to the National Urban League.

Texas Gov. Rick Perry (R) promptly condemned the Justice Department's action.

"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," he said in a written statement. "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."

But Holder made it clear the Justice Department's sights would be set beyond just Texas. He cited a South Carolina voter ID law that was the subject of a court fight last year in particular, which prompted criticism from that state's AG, Alan Wilson.

"Attorney General Eric Holder is rewriting history to advance a political agenda,'' he said. "South Carolina is proud of the progress it has made in protecting the rights of its voters, and will continue to encourage full voter participation in all coming elections." (WALL STREET JOURNAL)

POLITICS IN BRIEF: NEW HAMPSHIRE Gov. Maggie Hassan (D) vetoed HB 183, which if sustained will bar election workers from processing absentee ballots before 1 p.m. on Election Day. Hassan said the bill had the potential to undermine the transparency of the state's election process (UNION LEADER [MANCHESTER], STATE NET).  •  U.S. District Judge Timothy S. Black in Cincinnati, OHIO has ordered that city to recognize a dying man's same-sex marriage on his death certificate. The ruling raises questions about whether provisions of Ohio law and the state's Constitution barring such recognition are unconstitutional (CLEVELAND.COM).

STATE OFFICIALS REFUSING TO DEFEND CONTROVERSIAL LAWS: When state laws are passed, it's usually up to governors and attorneys general to see that they are implemented. But lately top state officials have been balking at defending laws on socially divisive issues.

For instance, Pennsylvania AG Kathleen Kane (D) has said she won't defend her state's ban on same-sex marriage in federal court in light of the U.S. Supreme Court's recent rulings on the issue. Hawaii Gov. Neil Abercrombie (D) has filed court papers declaring his state's same-sex marriage ban unconstitutional. And Indiana AG Greg Zoeller (R) is refusing to defend part of his state's immigration law.

Critics have accused the officials of subverting the legal system by basing their decisions on political rather than legal considerations.

"The people rely on the executive branch of doing its job of defending the laws, enforcing the laws," said Peter Breen, vice president and senior counsel for the conservative Thomas More Society, which intervened in a lawsuit filed last year in Illinois seeking same-sex marriage licenses from the Cook County Clerk after Democratic officials, including state AG Lisa Madigan, declined to oppose it. "It strikes at the heart of our representative system of government."

But former Maine attorney general James E. Tierney, who now directs the National State Attorneys General Program at Columbia Law School, said the truth is AGs refuse to defend laws "all the time."

"Legislatures are comprised in most states by non-lawyers trying to do the right thing, but they do not understand the complexity of constitutional limits. They are advised, but often plunge ahead — both liberals and conservatives — and make constitutional mistakes. It then falls to the AG to clean this mess up."

In recent years, however, high-profile political battles over same-sex marriage and other issues have placed state officials' decisions more in the spotlight. U.S. Attorney General Eric H. Holder Jr.'s decision in 2011 to stop defending the 1996 Defense of Marriage Act, which denied federal marriage benefits to same-sex couples and which the U.S. Supreme Court struck down a key portion of in June, undoubtedly contributed to that increased attention.

"There's no doubt that there's more public pressure as we defend on issues of this social magnitude," said Indiana AG Zoeller.

Rick Pildes, a law professor at New York University, said state officials should exercise great caution when it comes to deciding whether to defend statutes.

"There's always a very strong political temptation for elected officials — whether they're attorneys general, governors or chief executives — not to defend laws they disagree with politically, or whose defense will alienate powerful political constituencies," he said.

And several experts warned that while Democrats may seem more inclined not to defend certain laws at the moment, Republicans could very well do the same on issues like health care or hate crimes in the future.

"You start down this path, and it simply breeds more partisan warfare, and it provides more precedents for doing it more," said Norman J. Ornstein, a senior fellow at the American Enterprise Institute, a conservative think tank in Washington D.C. (WASHINGTON POST)

— Compiled by KOREY CLARK

The above article is provided by the State Net Capitol Journal. State Net is the nation's leading source of state legislative and regulatory content for all states within the United States. State Net daily monitors every bill in all 50 states, the District of Columbia and the United States Congress - as well as every state agency regulation. Virtually all of the information about individual bills and their progress through legislatures is online within 24 hours of public availability.

To subscribe to the Capitol Journal and access archived issue go to the State Net Capitol Journal.

If you are a lexis.com subscriber, you can access State Net Bill Tracking, State Net Full Text of Bills, or State Net Regulatory Text. If you are interested in learning more about State Net, contact us.

For more information about LexisNexis products and solutions connect with us through our corporate site