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