Voting rights activists have seized upon a key provision of the Voting Rights Act in an effort to mitigate the damage done by the Supreme Court earlier this month in the case of Shelby County, Alabama v. Attorney General Eric Holder. According to Adam Serwer at, the state of Texas may still be subject to the federal government's approval before it can rearrange voting districts or make changes to election law.

In its June 25 decision in the case, Chief Justice John Roberts neutered the historic 1965 Voting Rights Act by deeming that the criteria established in the Act for determining racist states was no longer valid. Section 4 of the Act set forth the requirements to establish that a state has a history of racial discrimination in voting. Section 5 mandated that all the states meeting Section 4's requirements must get clearance from the federal government (known as "preclearance") before changing election rules. By invalidating Section 4, Roberts and the Court made Section 5 all but unenforceable.

Republicans in Texas acted immediately to implement changes to voting laws and setting new congressional districts in the state that would greatly reduce the electoral impact of traditionally Democratic constituencies like African-Americans, students and Latinos.

However, Travis Crum, now a law clerk for Federal Judge David S. Tatel, anticipated a ruling of the type handed down June 25. Crum called Section 3 the Voting Rights Act's "secret weapon" in the Yale Law Review in 2010, saying that in the event of a ruling like Shelby, Section 3 could serve as a backup measure for establishing fairness in elections.

Section 3 of the Voting Rights Act, which the Court left intact, stipulates that any jurisdiction with a recent history of racially discriminatory practices shall be subject to the preclearance provisions of Section 5. Section 3 demands a higher standard of proof than Section 4. In Section 4, all that must be established is that changes in election law would have an adverse effect on racial equality in voting access. Section 3 demands that there be proof of the intent to racially discriminate on the part of the legislators seeking to change election laws.

Attorneys representing the Texas branch of the NAACP, the Texas Legislative Black Caucus and Democratic State Senator Wendy Davis have already filed suit under Section 3. The suit, filed last Tuesday in federal court, asks that the entire state of Texas be placed back under Section 5 on the grounds that a Congressional and Senate redistricting plan submitted in 2010 by the Texas GOP violated standards of racial fairness, meeting the criteria for Section 3.

“The congressional map and the senate map were both intentionally discriminatory,” said Gerald Herbert of the Campaign Legal Center, a lead attorney in the suit. “That kind of intentional discrimination violates the 14th and 15th amendments.”

Texas elected officials left a trail of incriminating emails behind for judges to use in deciding whether the party intended specifically to blunt the voting impact of nonwhites. Eric Opiela, a lawyer of Republican Texas Speaker of the House wrote instructions to officials drawing new maps in November of 2010 specifically instructing them to draw new lines in the state's District 10 that would excise high-turnout Hispanic areas from the district, ensuring that the area would never be accurately represented.

“The map-makers clearly and blatantly tried to game the system, by drawing a map that trampled on the voting rights of Texans,” said Texas state Rep. Pete Gallego (D) told MSNBC.

Establishing racist intent may not be so easy in other states affected by the Shelby ruling. Rights advocates say that Section 3 is not as useful or fair a tool as Section 4, but it will have to do.

“It’s an important avenue for the [Department of Justice] and other litigants to look at,” said legal expert Brenda Wright. “By no means is it going to be an adequate substitute for what we’ve lost with the Shelby County decision.”

[image of black voters registering in Americus, Georgia in 1965 via Flickr Creative Commons]