Should the Republican Party of Texas Sue DOJ over Voting Rights Act Preclearance Constitutionality?
by David Bellow on February 20, 2012 at 2:42 PM
Disclaimer: the following article is the opinion of David Bellow, an individual who is on the SREC, and does not express the "official opinion" of the Republican Party of Texas
The State of Texas is under assault by the Department of Justice and the Voting Rights Act. All this Texas redistricting mess (and the pushing back of the Primary Election date) is due to section 5 of the Voting Rights Act which requires a few states to have any voting changes approved by the Department of Justice first (because somehow it is better to have one unelected, biased person, the Attorney General Eric Holder, decide how a state runs elections instead of the elected officials of the state determining it for themselves).
The Republican Party of Texas, not just the State of Texas, is also facing the same, unconstitutional oppression. The Republican Party of Texas is faced with possibly having no precinct conventions, or limited precinct conventions, that are only optional with approval of counties/senatorial districts. Why is this happening? It is happening because the RPT has to come up with a way to have our convention/delegate selection process BEFORE the Primary Election this year due to the Primary Election getting pushed back possibly past the date of the State Convention. Somewhere along the line, the DOJ extended its hand into the Republican Party of Texas, a private organization, not a public or government organization. This new RPT convention/delegate selection process must first be cleared by the DOJ. We do not know when or if the new process will be cleared, and it could take weeks. Because of this uncertainty in the timeline, the Republican Party of Texas is strongly leaning towards making precinct conventions optional (to be decided by the county or senatorial district executive committees). Also, because we just do not know when the plan will be cleared by the DOJ, if precinct conventions do happen, they would be on the morning of the county/senatorial convention date (April 21st or April 14th in some cases).
Does DOJ Voting Rights Act Oversight Apply to Private Political Parties/entities like the Republican Party of Texas?
It is clear that the (unconstitutional) section 5 of the Voting Rights Act applies to election changes made in the State of Texas, but does it apply to the convention process changes of a private political party in Texas?
I say NO. The Republican Party of Texas is a PRIVATE political entity. Our process, by nature, is restricted to, and is guided by, the values/rules of only the members of our private Republican Party organization. Our process is not subject to the regulations for public elections/voting. Our party conventions DO NOT elect public officials or determine public policy/laws for the general public in Texas. Our convention process is used to develop our party rules/values and also to elect leaders of our PRIVATE POLITICAL ORGANIZATION. Any changes that the Republican Party of Texas makes to our convention process have NO EFFECT on the election process of public elections and voting. Public elections (electing public officials and voting on state and local regulations) are run by the governmental bodies in Texas, not the political parties in Texas. Changes to RPT rules do not affect general, public elections (or access to them) and certainly do not prevent anyone from voting for whomever or whatever they choose to in ANY public elections.
It is wrong that the RPT even has to get DOJ approval for our RPT Convention/Delegate Selection Process
Is Section 5 of the Voting Rights Act even Constitutional?
Should Texas Join Other States like Alabama and South Carolina in Openly Challenging the Voting Rights Act in the Courts?
- Section 5 requires some states to have their plans approved by the DOJ while other states do not have to have anything approved. It is inequitable to have one standard for some states and a different standard from some states. That is like having one school for blacks and one school for whites. The different standards also creates a situation where you have some states, like Illinois, getting to pass voter ID laws but Texas cannot pass them because the DOJ will not let us. How is it constitutional that one state can have a regulation but then Texas cannot have the same regulation because the DOJ does not like it?
- Another reason why section 5 of the voting rights act is unconstitutional is that there is no difference today between southern states and northern states in the sense that there is no institutionalized racism anymore and there is certainly NO states trying to keep minorities from voting. When the voting rights act was initially passed, it was a good thing. DEMOCRAT controlled southern states had laws discriminating against minorities and preventing them from voting. Those days are long gone. Anyone can vote no matter what color you are. Anyone of any color can be elected to public office in any state. Heck, the President is half black! My friend and conservative Texas State Rep, James White who is black, was elected here in East Texas based on his values, not the color of his skin. That right there shows you that the issue of minorities being restricted from voting, or even restricted from running for office, is long gone.
- Some parts of the Voting Rights Act are being used to CREATE INSTITUTIONAZED RACISM. That’s right, it was passed to stop discrimination, but now it is creating discrimination. It is nothing short of racist and discriminatory to say that voting districts have to be drawn based on race and that some races must have their own voting districts while other races cannot have their own voting districts. It is just silly. I don’t think ANY voting district should have the district drawn based on race, whether white black or Hispanic. We, as Americans, have to stop using race as a factor in everything we do. We need to look at each other as all fellow Americans and stop looking at race. It is keeping us apart instead of allowing us to come together. It is keeping people together in groups based on the color of their skin instead of allowing people to group together based on their values and regardless of the color of their skin. Will we never have a nation where people are judged based on the content of their character instead of the color of their skin as Dr. Martin Luther King Jr. dreamed?
- The Voting Rights Act is being used to preserve DEMOCRAT districts and not minority districts. It is crazy, but true. There are some districts in Texas that Democrats are trying to preserve using the courts. These districts are not majority minority districts. In other words, a majority of the voters in the district are not minority voters. The majority of the district is white. This makes them not protected by the Voting Rights Act as a majority minority district. The only reason the Democrats are trying to protect these Districts is because they are DEMOCRAT Districts.
The Democrats argue that the minorities in the district team up to vote with part of the white people in the district and therefore it should be protected as a majority minority district. This is what the Voting Rights Act has become? A way for Democrats to keep districts without regard to protecting minorities?
Texas Should Have Acted Sooner by having a Split Primary and Challenging the Voting Rights Act
I knew that the Democrats and liberal judges would drag this out and push back the election, which is why, from the beginning, I advocated for a split election so that we could go ahead and have the some parts of the Texas Primary Elections now (Presidential, County-wide, State-wide) and we could also have the Party Conventions/Delegate Selection. This would have allowed us to get the conventions and presidential primary election out of the way while the State and the Courts battled over redistricting/primary election date for US Congress, State Senate and State Representative.
I also advocated that Texas challenge Section 5 of the Voting Rights Act from the beginning of this whole mess. That would certainly have fast tracked the issue to the Supreme Court where they will hopefully strike down parts of the Voting Rights Act as unconstitutional. I am sure Texas will eventually join other states in challenging the Voting Rights Act in the near future, but because we did not challenge it from the beginning, we are stuck with it until this mess is all sorted out in the Courts.
Neither of the above ideas happened of course and that is why we are in the big mess we are in with the Primary Elections getting pushed back to May 29th, 2012 at the earliest.
This also means that we have to do our conventions and delegate process before we even have the primary elections. This causes MANY problems like who gets to go to the conventions since we cannot verify if they are Democrat or Republican? Who will run the conventions if we have not elected new county party leaders? Who will pay for the precinct conventions and locations since the conventions will no longer just be at the already established primary election polling places? Is there even time for counties to be able to organize their Precinct Conventions?
The fact of the matter is that this is a BIG MESS and there will be NO perfect plan. There will be many problems and many people will be upset. We just have to do what we can with a bad situation.
What should the RPT do about the DOJ and our Convention Process?
Here are three plans that I think are a options:
Plan 1) The Republican Party of Texas can just say no to the DOJ and go ahead with our precinct conventions now instead of waiting for approval of our plan (we would still have the problems associated with having the conventions before the Primary Election). This decision to ignore the DOJ would probably be challenged and an injunction placed against the RPT and our entire convention process could be put on hold and would be in jeopardy until we battle up to the Supreme Court and get a ruling from them as to whether or not we were justified in ignoring the DOJ.
Plan 2) The RPT can go ahead and come up with plans to submit to the DOJ. The DOJ would likely approve the plans but we would have to wait a couple of weeks for them to do it. This would allow Texas to have our conventions/delegate selection process without any legal problems from the DOJ or Judges. This would also mean that we would probably not have Precinct Conventions, or they would be optional, due to the limited time we will have to organize everything since we have to wait for DOJ approval. (This is currently the plan that the RPT is leaning towards)
Plan 3) The RPT sues the DOJ over the Voting Rights Act. We could sue the DOJ now before we have our conventions, which might cause a convention holdup, or we can go ahead and follow the DOJ approval process for now so that way we can have the conventions and get those out of the way before we take on the task of suing the DOJ. No matter what we do, I think we should still end up suing the DOJ. This of course would cost money. The RPT does not have any extra month for an expensive lawsuit so the Republicans in Texas would have to stand up and donate money to help the RPT sue over the Voting Rights Act.
A 2009 US Supreme Court Ruling sets up the Supreme Court to Strike Down Section 5 of the Voting Rights Act
There are multiple lawsuits challenging the Constitutionality of parts of the Voting Rights Act. At least one of them, out of Shelby County in Alabama, is on a fast track to be heard in the US Supreme Court this year.
Following renewal of the Voting Rights act in 2006, a Texas utility district challenged the constitutionality of the preclearance provision, claiming that it went beyond Congress’s power because Congress could no longer show that the law was necessary to prevent racially discriminatory voting.
In that 2009 case, the court came very close to striking down the law. Chief Justice John G. Roberts Jr. questioned whether there was evidence that these states, and only these states, would go back to racial discrimination in voting if the Voting Rights Act disappeared. He compared the government’s argument that preclearance was still necessary to an “elephant whistle”: “Well there are no elephants, so it must work.”
Chief Justice Roberts wrote a disingenuous opinion for eight members of the court resolving the question on statutory grounds — holding that the utility district could apply to “bail out” from coverage under the act — and temporarily avoiding the constitutional issue and political fallout. The opinion gave a clear warning that Congress needed to fix the problems in the act. Congress has done nothing about it and now there will be another showdown in the Supreme Court.