The Voting Rights Act May Not Be Dead After All

In a decision that could have enormous implications for the future of voting laws in the United States, a federal court ruled yesterday that the Department of Justice does indeed have the authority to use what remains of the Voting Rights Act to challenge a redistricting proposal in Texas.

In a 2-1 decision, a federal court in San Antonio allowed the Justice Department to make arguments in a case regarding Texas’s 2011 redistricting map. The proposed map was previously knocked down on the grounds that it intentionally discriminated against minorities in the state, but after the Supreme Court gutted the VRA earlier this summer, Texas reinstated the law.

While the case hasn’t yet been decided, this ruling has the potential to be a really, really big deal.

Some context: When the Supreme Court gutted the VRA earlier this summer, it didn’t actually strike down the entire law; it just killed the provision that required Texas and some other Southern states to receive federal pre-clearance before changing its voting laws. Many declared the VRA dead at this point, as this was the section of the law most commonly used to combat voter disenfranchisement.

However, Attorney General Eric Holder argued that two remaining parts of the law—Sections 2 and 3, to be precise— could still be effectively used to fight discriminatory voting laws. The difference is that under Section 3, the DOJ has to prove that a state’s laws were crafted with intent to discriminate; previously, the burden was on the state to prove that it wasn’t acting discriminatorily.

Because Section 3 was rarely used prior to the SCOTUS decision, there isn’t much legal precedent for when it can be invoked. This is why the San Antonio court’s decision is so important: If Texas’s redistricting map is thrown out after the DOJ argues against it, it will be the first precedent for post-SCOTUS application of the VRA.

While it would be a stretch to call this a make or break moment for voting rights, legal precedent has a huge sway in judicial rulings. The mere fact that the court allowed the DOJ to intervene is itself significant, and if the redistricting map is ultimately thrown out, it will be clear that reports of the VRA’s death were greatly exaggerated.