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Linzer – Voting Rights

Aug. 1, 2013 -- The U.S. Department of Justice recently fired its first shot in the battle over voter rights in response to the U.S. Supreme Court’s decision in June blocking a major provision of the 1965 landmark Voting Rights Act.  U.S. Attorney General Eric Holder announced the Justice Department is joining a suit asking a federal court in San Antonio to require the state of Texas to obtain advance approval before putting in place state and congressional redistricting maps or other voting changes. On June 25, the high court suspended a provision of the Voting Rights Act that required several states and other jurisdictions to acquire prior approval before making any changes that would affect voters. The court decided the criteria to determine which entities require close civil rights scrutiny were outdated. The suspension is to remain in effect until Congress drafts new criteria. University of Houston Law Center Professor Peter Linzer, a constitutional law scholar, has followed civil and voting rights law for decades and answered a few questions about today’s action by the administration:

Q.)   What is the Justice Department’s reasoning?
Under Section 4, which was declared unconstitutional by the Supreme Court in June, a state like Texas had to receive a “preclearance” before any change in its voting laws could take effect.  But under Section 3, which is still good law, if the attorney general files a lawsuit and can convince the court that a voting procedure has the purpose or effect of depriving voters of their right to vote because of color, etc., the district court can grant relief and retain jurisdiction.  While it retains jurisdiction, no changes can take place without its approval.  This would parallel the old procedure under Section 4, but this requires the AG to convince the district court with him or her having the burden of proof, a much more difficult road.

Q.)  Is the administration likely to intervene in all future instances of what it views as attempts to circumvent the spirit of the Voting Rights Act?
Unless the Supreme Court prevents it, I would think so, and it’s unlikely the Supreme Court would rule in the next year or two.

Q.)  Texas Attorney General Greg Abbott, a recently announced candidate for governor, immediately stated he will fight what he perceives as an attempt to intervene in the state’s rights. Since the high court decision did not preclude individual challenges, are we looking at an endless line of lawsuits over redistricting, photo ID, and other issues?
That is likely, but it is important to remember that these suits will be lengthy and expensive to litigate.

Q.)  Where is this all headed with a Congress that is unlikely to draft new standards to reinstate the “prior approval” provision of the Voting Rights Act?
To a lot of litigation.  But since it will be hard to win the challenges to restrictive laws, the laws will be in effect until a court, and likely the Supreme Court, upholds decisions striking them down.
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