In a court brief filed Wednesday, the Texas attorney general’s office raised states’ rights concerns about a Voting Rights Act provision guaranteeing
“„The argument is part of the fight over whether two Democratic lawmakers from North Texas should be allowed to intervene against the state in its lawsuit to get the federal court to pre-clear the redistricting map approved by the Legislature.
“„The state’s lawyers wrote that “subjecting the states to a suit where they bear the burden of proving, in essence, that they are not governed by recalcitrant lawbreakers is extraordinary in itself, albeit perhaps once justified by the historic exigencies of the middle 1960s.”
“„Tucked away inside Abbott’s filing is a sort-of King’s X: “This complaint is filed under the assumption that Section 5 complies with the United States Constitution.”
“„That’s not just typical lawyer mumbo-jumbo. Abbott said the state “reserves all applicable legal claims” in light of the U.S. Supreme Court’s 2009 decision in an Austin case that skirted the edge of declaring the pre-clearance requirement unconstitutional. Two other cases on the same question are pending before the D.C. court.
“„The Supreme Court deliberately sidestepped that question in the 2009 Austin case, deciding it on a narrower issue while acknowledging that the pre-clearance requirement raises “serious constitutional questions.” Justice Clarence Thomas wrote separately that voting participation by minorities has improved to the point that pre-clearance is no longer necessary and therefore is unconstitutional.
“„The “violence, terror and subterfuge” that denied minority voting rights in the past is not in evidence today, Thomas wrote, and “a record of scattered infringement of the right to vote is not a constitutionally acceptable substitute” to justify the pre-clearance requirement.