Late Monday night, the State of Texas filed its motion for summary and accompanying brief arguing that section 5 of the Voting Rights Act was unconstitutional “both on its face as interpreted by this Court.”
According to the state, section 5 fails constitutionally because:
The Fifteenth Amendment prohibits only purposeful racial discrimination, and there is no prophylactic justification for requiring a covered jurisdiction to prove ‘nonretrogression’ when section 5 already requires the State to prove that its laws comply with the Fifteenth Amendment before those laws can take effect. The ‘nonretrogression’ requirement also violates the Equal Protection Clause by forcing covered jurisdictions to engage in race-conscious decisionmaking. And the ‘nonretrogression’ standard is so indeterminate that it gives the Department of Justice and the federal courts limitless discretion to withhold preclearance from voter-identification laws - either by saddling a State with an impossible burden of proof or by choosing a theory of ‘nonretrogression’ that will ensure a denial of preclearance.
Texas also argues in its brief that section 5 is unconstitutional because Congress extended the law for another 25 years in 2006 without sufficient evidence in the record to justify continuing to single out certain states and jurisdictions for the “extraordinary remedy” of preclearance - noting that section 5’s “coverage formula is based on data that are over 35 years old.”
Texas argued that:
[E]ven if the legislative record could support the decision to reauthorize section 5’s preclearance requirement, it cannot support Congress’s decision to retain an outdated coverage formula that fails to rationally define the jurisdictions that (supposedly) cannot be trusted to respect the Fifteenth Amendment.
While Texas recognized that the D.C. Circuit court of appeals had already upheld the facial constitutionality of section 5 in the Shelby County, Alabama case, Texas argued that the three-judge panel was not bound by circuit court precedent and should reject the D.C. Circuit’s reasoning in Shelby County.
Texas argued that the favorable outcomes in 653 cases filed between 1982 and 2005 under section 2 of the Voting Rights Act showed that violations of the Fifteenth Amendment could be successfully addressed through “traditional litigation,” including the remedy of a preliminary injunction.
As in the initial trial phase, the state is represented in the constitutional phase both by lawyers from the Attorney General’s office and the outside Chicago law firm of Bartlit Beck Herman Palenchar & Scott LLP.
Under the court’s scheduling order, attorneys for the Justice Department and intervenors have until October 22 to respond and file cross-motions for summary judgment. The state then has until November 1 to file a reply brief, with the Justice Department’s and intervenors’ final briefs due November 13.
The court has not yet set a date for oral argument on constitutionality question, but based on the briefing schedule, it does not appear likely argument would occur until December at the earliest.
The state’s brief can be found here.