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For Abbott, a Legal Fight and a Political Bonanza

The U.S. Justice Department’s request to keep Texas under federal oversight when it comes to election laws is drawing predictable responses from Texas politicians.


The U.S. Justice Department’s request to keep Texas under federal oversight when it comes to election laws is drawing predictable responses from Texas politicians.

Republicans think it stinks. Democrats think it smells pretty good.

In political terms, it’s a little more complicated.

It was a political gift to Texas Attorney General Greg Abbott, who is hoping to be the next governor of Texas. As a talking point, there’s nothing better for a Texas Republican right now than a fight with the Obama administration, and this one — unlike, say, the federal Affordable Care Act — belongs first and foremost to the state’s top lawyer.

It is a strong partisan move for national Democrats, who suffered a setback last month when the U.S. Supreme Court ruled unconstitutional a section of the Voting Rights Act that forced Texas and other states with histories of discrimination to seek federal preclearance before making changes to their election laws.

And it’s the newest twist in a continuing legal battle in the federal courts over redistricting, voter ID and other election laws, particularly in states where allegations over racial discrimination still figure prominently in electoral politics.

U.S. Attorney General Eric Holder telegraphed the punch in a speech to the National Urban League Thursday morning, saying the Supreme Court’s ruling was “flawed” and saying he would ask the courts to use a “bail in” provision in the voting law to continue close supervision of states with recent histories of discrimination in their election laws.

Texas, for instance.

“Based on the evidence of intentional racial discrimination that was presented last year in the redistricting case, Texas v. Holder — as well as the history of pervasive voting-related discrimination against racial minorities that the Supreme Court itself has recognized — we believe that the State of Texas should be required to go through a preclearance process whenever it changes its voting laws and practices,” he said.

Later in the day, the DOJ filed briefs with a federal court in San Antonio asking it to do just that.

Abbott led the backlash. “I believe the Obama administration is joining with the Democrat Party in the state of Texas in a lawsuit aimed at the 2014 elections, rather than trying to protect the rights of minorities,” he said in a conference call with reporters. “I believe this is an abuse of the Voting Rights Act for partisan political purposes.”

The courts will sort that out. The political debate is well under way.

Gov. Rick Perry has made Washington a most useful foil since the start of the Tea Party movement. In the 2010 governor’s race, he went after U.S. Sen. Kay Bailey Hutchison — until then, a very popular Republican in Texas — over her Washington experience. His book Fed Up! came on the heels of that campaign and became a primer for his unsuccessful run for president in 2011 and into 2012.

Abbott, the state’s top lawyer, has been Perry’s partner in federalism, and Holder handed him something to talk about from now until the state’s redistricting legislation ends. Merits aside, the federal government is trying to assert itself in an area where it thinks the state has fallen short. Texas vs. the Feds is a pretty good narrative in a Republican campaign.

It gives the attorney general a way to deflect criticism about his office’s handling of redistricting in the courts. Some of Abbott’s fellow Republicans have knocked his decision to go to the courts instead of to the Justice Department for preclearance of the Legislature’s 2011 maps. The three-judge Washington panel that worked on that worked slowly, setting off a chain of events that delayed the Texas primaries in 2012 from March to May.

That court also found Texas intentionally discriminated in drawing those maps. That ruling was vacated when the Supreme Court ruled in the Alabama case last month, but the finding is being held up by some as evidence that the state’s historical discrimination has continued to the present day. That’s part of the basis for Holder’s request to “bail in” the state and require preclearance in the future.

The Supreme Court, in the Alabama case, effectively deleted the list of states and local jurisdictions that have to seek federal permission before changing election laws. That freed Texas from preclearance in the future, unless another court decides the state has behaved badly enough to be subjected to it in the future.

Recently, a couple of big preclearance rulings have gone against the state. Its voter ID law was pending appeal when the Supreme Court ruled, as were the 2011 redistricting plans for congressional and legislative races. At Abbott’s urging, the Texas Legislature effectively ditched those maps this summer, voting to replace them with maps almost identical to those drawn by federal judges for use in the 2012 elections. The Supremes vacated the intentional discrimination findings in the Texas case after the Alabama ruling, and the Legislature got rid of any need to keep defending them.

For the lawyer who was on the hook, that was all good news.

Abbott still has some risk. The Justice Department is asking the courts to put Texas back in the preclearance basket. The whole thing could take time, and state election officials — who went through something like this in late 2011 — fear the state’s March primaries could be delayed again. Some Texans would blame the feds, but some would blame Abbott. Tom Pauken, who is also seeking the Republican nomination for governor next year, is already working that angle, saying Abbott should have made a stronger play in 2005 when Congress was working on the Voting Rights Act and George W. Bush was president. “As the Texas Attorney General in 2005, Greg Abbott failed a test of leadership in not persuading Republicans in Washington to end this once and for all,” Pauken said in a statement on Holder’s speech. “He was asleep at the switch.”

That reauthorization of the Voting Rights Act left in place a section describing which states and voting jurisdictions had to continue to get federal permission before making changes to election law. That’s the section cast aside by the Supreme Court’s ruling. But the court left in place both the preclearance and the bail-in provisions, leaving the option for hauling in discriminatory jurisdictions.

Texas Democrats lauded the Justice Department’s filing as protection for minority citizens whose voting rights weren’t protected by Republican state lawmakers when voter ID laws and redistricting maps were passed.

Texas Republicans blasted the Justice Department for trying to go around a fresh opinion by the U.S. Supreme Court that didn’t suit the Democrats.

The courts have something to think about.

The politicians have something to talk about.

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This article originally appeared in The Texas Tribune at http://www.texastribune.org/2013/07/26/abbott-legal-fight-and-political-bonanza/.

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