DOJ demands federal control of Texas election
This article originally appeared on watchdog.org.
HOUSTON – Two weeks after the U.S. Supreme Court put an end to the “pre-clearance” requirements of the Voting Rights Act, the U.S. Department of Justice is back in court trying to assert federal control over a Texas election.
Assistant Attorney General Thomas E. Perez on Wednesday asked a three-judge federal court in Washington, D.C., to set the terms and date of an election for trustees of the Beaumont Independent School District.
The federal court issued an injunction earlier this year blocking a regularly scheduled May election. At the time, it asserted jurisdiction under the Voting Rights Act, which was drastically reshaped by the Supreme Court last month in the case of Shelby County v. Holder.
The Supreme Court struck down Section 4 of the Voting Rights Act, eliminating the requirement that certain covered jurisdictions prove in advance that changes to voting law are nondiscriminatory. Effectively, at least for now, the ruling ends federal oversight of Southern elections unless the government can prove discrimination.
The ruling was well-received by local-control advocates in Beaumont, where a group of reformers has been trying to win seats on the board of a district engulfed in scandal.
Texas courts have sided with the reformers, but the federal court and the Justice Department have sided with the majority black school board in blocking elections, a referendum and state court decisions that might imperil a black majority.
Attorneys for a group of reform-minded school board candidates filed papers the day after the Shelby County ruling arguing that “now that BISD is no longer a covered jurisdiction, the Court should dismiss this case.”
Two days after the Shelby County ruling, the Supreme Court vacated two lower court decisions refusing pre-clearance.
Nevertheless, the Justice Department is arguing to a federal court that the school district “likely does not have authority under state law to schedule a new election; hence such an election will need to be ordered by a court.”
The Justice Department doesn’t offer a reason why it should be a federal court interpreting state law. It even concedes that “Texas law may permit a state court to order a special election…” Instead, Perez makes a generic appeal to the federal court’s “inherent equitable authority” to settle the matter.
“While the BISD is not required to seek preclearance under Section 5 for its new election schedule, this Court retains inherent equitable authority to enter an election order in the unique circumstances presented here, where the jurisdiction’s inability to hold its regularly scheduled election this year resulted from an injunction lawfully issued by this Court, under the governing caselaw at the time,” Perez writes. “Having lawfully enjoined the election, this Court retains authority to order a new election.”
If the matter is settled by a state court, the school board likely is to get a new majority. In March, a state appeals court ruled that four incumbents had failed to file for re-election, and ordered the board to either put their reform-minded opponents’ names on the ballot as uncontested, or to certify their election as unopposed.
The federal court blocked that order.
Reformers went back to the state appeals court this week to get the judge to issue a new order, now that federal oversight has been overturned.
Texas law calls for staggered elections for school boards, with four seats up one election and three seats up two years later. Perez argues that this means “some voters” would get to vote, while others wouldn’t, “including three districts where black voters have soundly rejected” reform candidates in previous elections. “This,” Perez argues Yoda-like, “equity cannot permit.”
“In these circumstances, equity authorizes this court to restart the democratic process in the BISD,” Perez concludes.
It’s an open question whether state authorities would continue to defer to a federal court asserting no legal authority greater than its own conception of “equity.”