The Southern states, that is. Or any other state that has the temerity to tighten up its own voting regulations in ways that would appear to make perfect sense.

A mere month ago, in Shelby County v. Holder, the Supreme Court issued a ruling that Obama and the DOJ didn’t like when the Court struck down the part of the Voting Rights Act of 1965 that was used to identify which states were covered by that law. The president, Holder, and other Democrats have already voiced their dissatisfaction with that ruling, and now we have the administration’s tactical response:

In the coming weeks, Attorney General Eric H. Holder Jr. is expected to announce that the Justice Department is using other sections of the Voting Rights Act to bring lawsuits or take other legal action to prevent states from implementing certain laws, including requirements to present certain kinds of identification in order to vote. The department is also expected to try to force certain states to get approval, or “pre-clearance,” before they can change their election laws.

“Even as Congress considers updates to the Voting Rights Act in light of the Court’s ruling, we plan, in the meantime, to fully utilize the law’s remaining sections to subject states to pre-clearance as necessary,” Holder said in a speech Thursday morning in Philadelphia. “My colleagues and I are determined to use every tool at our disposal to stand against such discrimination wherever it is found.”

There’s this action by the DOJ as well, directed for the moment at Texas but almost certainly, if successful, to be aimed at other states trying to implement similar rules (and maybe even if not successful, in order to harass them anyway and rev up the liberal/left base):

Attorney General Eric H. Holder Jr. announced on Thursday that the Justice Department would ask a court to require Texas to get permission from the federal government before making voting changes in that state for the next decade. The move opens a new chapter in the political struggle over election rules after the Supreme Court struck down a portion of the Voting Rights Act last month…

In a statement, Gov. Rick Perry cast Mr. Holder’s remarks as an attempt by the Obama administration to weaken what he called the state’s voter-integrity laws and said the comments demonstrated the administration’s “utter contempt for our country’s system of checks and balances.”

“This end run around the Supreme Court undermines the will of the people of Texas, and casts unfair aspersions on our state’s common-sense efforts to preserve the integrity of our elections process,” Mr. Perry said.

Well, of course. Did anyone really think Obama and Holder would merely swallow the will of the Supreme Court, when they could get creative?

Will Obama/Holder win this battle? Ed Morrissey of Hot Air has his doubts:

Holder’s problem here, though, is that it’s the pre-clearance criteria in Section 4 of the Voting Rights Act that the Supreme Court struck down as irrational and outdated. The court left Section 5 in place, which has the enforcement mechanisms for the DoJ to use if Congress provides a rational formula for singling out states and other jurisdictions for the intrusive level of scrutiny pre-clearance imposes. However, with Section 4 invalidated, the DoJ literally has no jurisdiction at all to use Section 5 any longer anywhere, not until Congress provides it.

What Holder proposes to do is to tell Texas to get DoJ approval for its voting (and redistricting) laws before putting them in force, right after the Supreme Court told Texas and the other Section 4 states that they don’t need to do so. Holder can file a lawsuit to attempt to force compliance, but that’s just bluster. Texas isn’t going to comply, and it’s doubtful a federal court would do anything but laugh at the filing after the ruling last month. The DoJ has no more jurisdiction to tell Texas to get pre-approval for laws passed under its own sovereignty. This is grandstanding on a particularly demagogic scale.

Holder’s statement is nonsense on another level, too. The DoJ can enforce anti-discrimination laws under the Voting Rights Act, especially under Section 2 — but just like with the parts of the US that didn’t fall under Section 4 the last 50 years, the DoJ has to wait until actual discrimination takes place. That shifts the burden of proof to the DoJ to prove guilt, where it belongs, instead of onto the handful of jurisdictions to prove themselves innocent of discrimination before a law even gets applied.

Make no mistake about it, this is no side issue. It is one of the most important elements of the Obama administration’s agenda, because it affects future voting, and winning the battle would not only help the Democratic Party, but would represent an expansion of the power of the federal government to place a heavy hand on states whose actions it doesn’t like—and/or to get around SCOTUS rulings it doesn’t like.

[Neo-neocon is a writer with degrees in law and family therapy, who blogs at neo-neocon.]


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