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[Image courtesy of washingtonpost]

As the dust settles after the U.S. Supreme Court’s Shelby County decision effectively eliminating preclearance under Section 5 of the Voting Rights Act, all eyes have been on the looming battle between states and the federal government about the future of efforts to require oversight of election changes.

About two weeks ago, U.S. Attorney General Eric Holder announced that the Department of Justice would aggressively enforce the Act, including asking the courts to require certain states to once again be subject to preclearance due to current alleged voting rights violations. I blogged about that decision, and included an analysis by SCOTUSBlog’s Lyle Denniston about the likely response by states, like Texas, that are in DOJ’s sights – namely, that they would probably seek to tee up any such effort as a constitutional dispute.

Yesterday, Texas filed its response to DOJ and – not surprisingly – Denniston was right. Here’s what he had to say about the filing and what it means going forward:Mounting a strong counter-attack to attempts by the Obama administration and others to give federal courts new powers of supervision over Texas voting laws, officials of the Lone Star State have told a three-judge district court in San Antonio that it cannot impose that regime at this stage, or at any point unless there is new proof of “rampant” racial bias in election procedures in the state.

In a fifty-four-page filing Monday evening, state officials cited the Supreme Court’s June 25 decision in Shelby County v. Holder, and told the District Court that it “cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.” Preclearance obligations under the Voting Rights Act of 1965, the state contended, can now only be ordered if racial bias in voting in a state rises to the level of the “ever-changing discriminatory machinations that gave rise to the preclearance regime in the first place….Nothing remotely like that has occurred in modern-day Texas.”

The state thus is attempting to turn the new courthouse skirmish over a little-used section of the 1965 law — its Section 3 — into a constitutional battle with high stakes for the future of voting rights. As the two sides have lined up on opposite interpretations of Section 3, there is now a very real prospect that the Supreme Court may one day have to clarify when a state may be required to get approval in Washington before it can put into effect any change in its election laws or methods.

In particular, Texas is seeking to raise the bar for any effort to “bail in” states under Section 3:

The Justice Department and civil rights and minority voter advocacy groups have asked that Texas be “bailed in” to a preclearance obligation for the next ten years, and perhaps beyond. That request is now being considered by the district court in San Antonio, which is reviewing new redistricting maps for electing members of the state legislature and of Texas’s delegation in the U.S. House of Representatives. Monday’s filing by Texas was the state’s fullest response yet to that request. At stake in the controversy, of course, is not just a state’s power to draw up new election boundaries, but to enact and enforce a whole host of election laws, including voter identification requirements and controls on when voters may go to the polls …

In order to satisfy Section 3, the state’s new brief argued, a court must make a new finding that a state is engaging in “rampant, widespread, recalcitrant discrimination” of the kind that Congress in 1965 found to be justification for the unusual remedy of preclearance. If that is not present, then, the state asserted, those who complain that a state is engaging in racial bias in its elections must come forward, in a new lawsuit of the conventional kind, to prove that complaint. This traditional form of litigating claims of race bias is now “more than adequate” to deal with any problems that now crop up, according to Texas’s argument. It was only because that traditional approach was found wanting in the 1960s that Congress switched to the preclearance regime, it contended.

The state’s view of the Shelby County decision is that it put the preclearance regime further out of reach of the courts because it was a unique intrusion upon the sovereignty of the states, and denied the basic guarantee that the states are equal to each other. The Court, according to Texas, found preclearance to be an “extraordinary” remedy for Congress to have chosen. It also would be “extraordinary,” the state went on, for a court to now impose a preclearance regime except in extraordinary circumstances. Having a court order that regime into effect for a state, the brief contended, is “no less constitutionally suspect” than it was for Congress to do so.

This case will be closely watched as a barometer of the future of the Voting Rights Act – and its appearance in SCOTUSBlog suggests it might not be long before voting rights (and the federal regime for enforcing them) is back before the nation’s highest court.