Texas challenges what little is left of the Voting Rights Act

Last month, a federal appeals court unanimously struck down Texas’s voter ID law on the grounds that it violated the disparate impact test. African-American and Latino voters were found to be roughly two and three times as likely, respectively, to lack one of the forms of ID required under the law, which, not coincidentally, likely determined the outcome of a congressional election in 2014.

Not one to be messed with, Texas is fighting back.

As Rick Hasen explains in Slate, when the Supreme Court struck down Section 5 of the Voting Rights Act — the part that established preclearance requirements for changes to election laws in states and localities with a history of racial discrimination — Chief Justice John Roberts argued that citizens could always bring cases under Section 2 of the law. That section, which applies nationally instead of to particular counties, prohibits laws that discriminate on the basis of race or language minority groups. Different courts have come to different conclusions in challenges to voter ID laws under Section 2, with Texas’s law representing one of the successful challenges.

In an attempt to reinstate their law, Texas is now arguing that if Section 2 can be used to invalidate its voter ID law, then it is as unconstitutional as Section 5, as it improperly interferes with the state’s ability to set its own rules governing elections. From Hasen, who is worth quoting at length here:

Flag of Texas, via Wikimedia Commons

Flag of Texas, via Wikimedia Commons

Texas has filed a petition asking the entire 5th Circuit (sitting “en banc”) to review the law, and you should expect Texas to go to the Supreme Court if it loses again. Aside from arguing that Section 2 does not bar its voter ID law, the state argues that Section 2 would be unconstitutional if it actually made Texas’ voter ID law illegal. First, piggybacking off the Shelby County decision, Texas argues, such a reading of Section 2 would exceed Congress’ power to enforce the Constitution’s prohibition on race discrimination in voting under the 15th Amendment. Second, Texas argues that if Section 2 is violated simply by showing an election law has a “disparate impact” on racial minorities, then this would elevate racial considerations over a state’s legitimate policy objectives, like stopping voter fraud.

Let’s not mistake what Texas is doing here. To seem more moderate, it couches its constitutional arguments in the language of “constitutional avoidance,” not exactly saying that Section 2 is unconstitutional but saying that the courts should read it narrowly because otherwise the law would be unconstitutional. In practical terms, that’s a distinction without a difference. In either case, according to Texas, the result is that Section 2 cannot offer protection for racial minorities in vote denial cases.

To be clear, what tripped Texas up in the last case was their inability to establish that stopping voter fraud was a legitimate policy objective, as in-person voter fraud (the kind that voter ID laws are designed to prevent) is practically nonexistent. If Texas can’t show that in-person voter fraud is a problem that needs solving, they’re going to have an exceedingly difficult time explaining why the mere worry that it’s a thing that could happen justifies making it more difficult for black and brown Texans to vote.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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4 Responses to “Texas challenges what little is left of the Voting Rights Act”

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  4. BeccaM says:

    Gah… every federal law regarding elections ‘interferes with a state’s ability to set its own laws governing elections.’

    That’s the whole point, because in the past and in the present, states have shown a willingness to pass laws that abridge the fair and equal ability to vote for all voting-age citizens. States once wanted to have the legal means to apply poll taxes and literacy tests, so as to suppress African American votes. Now, Republicans are seeking to disenfranchise every demographic that is likely to favor Democrats.

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