The Independent View: Civil Rights Division Bails Out of TX Bail-In

On a Filing last week from the Department of Justice's (DOJ) Civil Rights Division, by a Career Staff, of a Request for Voting Rights Act (VRA) Texas Bail-In on the Redistricting Case.

The DOJ Ruling attempted to Ensure that there are No Meaningful Consequences for Intentional Racial Discrimination.

VRA Bail-In

Section 3(c) contains a "Bail-In" or "Pocket Trigger" Process by which Jurisdictions that Fall Outside the Coverage Formula of Section 4(b) may become Subject to Preclearance. Under this Provision, if a Jurisdiction has Racially Discriminated against Voters in Violation of the Fourteenth or Fifteenth Amendments, a Court may Order the Jurisdiction to have Future Changes to its Election Laws Preapproved by the Federal Government. Because Courts have Interpreted the Fourteenth and Fifteenth Amendments to Prohibit only Intentional Discrimination, a Court may Bail-In a Jurisdiction only if the Plaintiff(s) Proves that the Jurisdiction Enacted or Operated a Voting Practice to Purposely Discriminate.

On Tuesday, the DOJ filed a Brief Reversing Position in a Case it brought Six years ago. The Civil Rights Division now Argues that Texas should be Let Off the Hook for its Repeated Intentional Efforts to Minimize the Voting Power of its Minority Population. Many Nonpartisan Career Staff apparently Refused to do this Dirty Work.

If Bail-In losses its teeth, there’s nothing keeping Officials with a Demonstrated History of Wrongdoing from their Worst Instincts. Which brings us to Texas. The State has a Serious Problem with Discrimination against its Minority Citizens. The Problem spans Decades, but it’s not just Ancient History.

This is the Behavior of a Jurisdiction with a Problem, and one that does Not appear Willing or Able to Contain its Worst Impulses on its own. Yes, the Impact of both the Redistricting Lines and the Voter ID Law have since been Mitigated, but only after Texas was Repeatedly dragged kicking and screaming into Federal Court. In the Criminal Justice system, the Texas Government would be labeled a Recalcitrant Recidivist.

The Pattern in Texas Redistricting, Demands Systemic Intervention.

Cases in:

- 2011 was Discriminatory, and No Court has Overturned that Finding.

- 2003 was Discriminatory, and No Court has Overturned that Finding.

And tragically, the DOJ Brief Identifies absolutely No Reason to believe that Texas won’t try in 2021 exactly what it did in 2011 and 2003.

The DOJ says, based on One Sentence in Veasey ripped out of its Proper Context, that Texans are Legally Bound to Trust a Texas Promise not to do it again.

The Weakness of the current DOJ’s Filing has one other Tell, and it may be the most Significant.

Trial Briefs are normally Signed by the Career Attorneys who do the Bulk of the Work. But a Career Staff Signed the DOJ’s Filing on Tuesday.

This is Not the New Convention of the Civil Rights Division in the Trump era. The Career Attorneys know that Tuesday’s Filing is Wrong. They’ll Sign the Final Page’s Certificate of Service, because they can truthfully say that they Sent the Brief into the Court’s E-Filing System. But they can’t Truthfully say that they Believe the Legal Argument in the remaining 12 Pages.