Voting Rights

Texas Two-Steps All Over Voting Rights

It says it can make voting as difficult as it wants to, and any law that says otherwise is unconstitutional.

By Richard L. Hasen

In 1965, Congress passed the Voting Rights Act, one of the most important pieces of legislation in U.S. history. It contained key protections for minority voters, especially blacks, who had been effectively disenfranchised in the South. The act was a remarkable success, increasing minority voter registration and turnout rates within a few years. In 1982, an important amendment made it much easier for minority voters to elect candidates of their choice.

Then, following the contested 2000 elections, states started passing new voting rules along partisan lines. As part of these voting wars, conservative states began passing laws making it harder to register and vote, restrictions that seemed to fall most on poor and minority voters.

In the midst of all of this, the Supreme Court in 2013 struck down a key component of the Voting Rights Act. It had required states and jurisdictions with a history of racial discrimination in voting to get permission from the federal government before making a voting change by proving that the proposed change would not make it harder for minority voters to vote and to elect their preferred candidates.

Don’t worry, Chief Justice John Roberts assured the American public in that 2013 case, Shelby County v. Holder. Although states with a history of racial discrimination would no longer be subject to federal “preclearance” of voting changes because preclearance offends the “equal sovereignty” of states such as Texas, there’s always Section 2 of the Voting Rights Act. That provision, Roberts explained, is available “in appropriate cases to block voting laws from going into effect. … Section 2 is permanent, applies nationwide, and is not at issue in this case.”

So the federal government and civil rights plaintiffs have used Section 2 as their best remaining protection. They used it to go after Texas for enacting one of the strictest voter ID laws in the nation and North Carolina for passing an omnibus voting rights rollback. Somewhat surprisingly, a panel of the conservative U.S. Court of Appeals for the 5th Circuit recently agreed that Texas’ decision to enact a strict voter ID law, without proof that the law is necessary to prevent voter fraud or promote public confidence, violated Section 2.

But now Texas has upped the ante, arguing that if Section 2 indeed makes its voter ID law illegal, then Section 2 violates the Constitution. That means the other great statutory protection of minority voting rights would suffer the same fate as the preclearance provision and leave minority voters with few protections from unwarranted new voting hurdles.

Section 2 provides relief when minority voters have less opportunity than others to participate in the political process and to elect representatives of their choice. It has long been accepted by the courts in so-called vote dilution cases, in which black, Latino, or other minority voters get gerrymandered out of political power by the creative drawing of district lines. In 1986, the Supreme Court adopted a framework for deciding when Section 2 requires jurisdictions to draw legislative or congressional districts to help minority voters elect candidates of their choice.

But we have much less experience using Section 2 in so-called vote denial cases, in which the claim is that the government enacted a voter ID law, tough voter registration rule, or other voting rule that makes it harder to cast a ballot that will count. In a series of cases beginning in the 1990s, courts rejected Section 2 challenges to felon disenfranchisement, mostly ruling that when Congress passed Section 2, it did not mean to interfere with states’ decisions to disenfranchise felons for as long as the state deemed necessary, even if today’s felon disenfranchisement bans have the greatest impact in black communities.

But after the Supreme Court killed preclearance, ruling that the formula used to pick which states must get federal approval of voting changes was constitutionally outdated, the U.S. Department of Justice and voting rights lawyers started bringing vote denial suits under Section 2. The courts have split on how to apply it and whether strict voter ID laws and other voting cutbacks violate the section. Last year, a federal district court held Wisconsin’s voter ID law violated Section 2, but the U.S. Court of Appeals for the 7th Circuit reversed that decision, and the Supreme Court declined to hear the case. The 7th Circuit held that despite evidence that up to 300,000 Wisconsin voters lacked the right kind of voter ID, and despite evidence that minority voters were much more likely than white voters to lack such ID, there could be no Section 2 violation without proof that state racial discrimination caused the disparity. The entire 7th Circuit split 5–5 on whether to hear the case, with Judge Richard Posner writing a scathing dissent from the failure to do so.

A federal district court in Texas and the 5th Circuit reached a different conclusion than the 7th Circuit in reviewing the Texas case, finding that when one considered all of the factors courts usually consider in vote dilution cases, Texas’ law violated Section 2. A very large number of Texas voters lack the mandated form of ID and don’t have easy access to get it, and that burden falls heaviest on poor and minority voters.

A key factor in the 5th Circuit’s analysis, in an opinion by George W. Bush appointee Catharina Haynes, was the “tenuousness” of Texas’ explanation for the law: Texas offered no proof that its law really was necessary to fight voter fraud. The  5th Circuit panel ordered the trial court to consider how it might rework the law so that it could be partially enforced but would no longer discriminate against minority voters.

Now 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.

If the argument succeeds, then Roberts’ promise in Shelby County that minority voters will be protected by Section 2 after the death of preclearance will prove to be tragically empty. And the Texas two-step will stomp out what remains of protections for minority voters from the new vote denial.