U.S. v. Texas and the Strident Language of the Voting Rights Fight

By Andrew Cohen, The Atlantic —

WITH PERMISSION —

Ballot integrity measure. That's what Republican officials in Texas
call SB 14, the voter identification measure designed to make it
measurably harder for people there to vote. Not all people, mind you.
Just people who don't own or drive cars, and people who can't afford to
take time off from work to travel long distances to state offices that
are not open at convenient times for working people, and elderly people
who are ill and young people who cannot afford to pay the cost of new
IDs they have never before needed.

People, everyone acknowledges, who are more likely to vote Democratic than Republican even in the still Red State of Texas.

So the headline alone — United States v. Texas
tells you a great deal about what you need to know about the new civil
rights lawsuit filed by the Justice Department last Thursday in federal
court in Corpus Christi. It tells you that the battle over voting rights
in the wake of Shelby County v. Holder, the United States Supreme
Court's ruling in late June that struck down a key provision of the
Voting Rights Act, has become the latest keynote in the nasty national
debate between the Obama Administration and its most ardent conservative
critics. And it suggests that things are likely going to get worse
before they get better.

In Austin and in Washington forces now are marshaled for the fight.
Gone is the diplomatic language of Chief Justice John Roberts' majority
opinion in Shelby County, the one that softly declared outdated
Congress's “coverage formula” for determining which discriminatory
jurisdictions warranted federal “preclearance” oversight for changes to
voting measures. In its place is the raw language of political war. You
can learn a great deal about what's coming next, both in Washington and
in Austin, from the way officials quickly described the new lawsuit.

Austin

“Facts mean little to a politicized Justice Department bent on
inserting itself into the sovereign affairs of Texas,” said Republican
Sen. John Cornyn, a former state attorney general and supreme court
justice. With great cheek, Sen. Cornyn calls the new voter ID law —
which, regardless of its racial dimensions, further divides the state's
rich and poor — a law about “voter equality.”

As Texans,” he wrote last week, “we reject the notion that the
federal government knows what's best for us. We deserve the freedom to
make our own laws and we deserve not to be insulted by a Justice
Department committed to scoring cheap political points.”

Humming the same tune was Governor Rick Perry, the outgoing governor
of the state and a longtime advocate of restrictive voting laws. The
Obama Administration is trying to “obstruct the will of the people of
Texas,” said Gov. Perry.

But both the senator and the governor were positively diplomatic with
their scorn compared with Greg Abbott, the erstwhile Attorney General
of Texas, who used the phrase “gutter politics” to describe the Justice
Department's decision to challenge the state's new voter identification
law, SB 14, one of the most restrictive in the nation, on the grounds
that it is discriminatory in both its intent and its effect.

The full quote from Abbott is even more evocative. Here's the man who
wants to succeed Perry as governor of the Lone Star State. Here's the
man who was chastised in federal court one year ago for inadequately
defending the law when it was successfully challenged under the Voting
Rights Act's now-defunct Section 4.

And yet he's neither cautious, nor defensive, but rather in high
dungeon. “Eric Holder's outrageous claim that voter ID is a racist plot
to disenfranchise minority voters is gutter politics and is offensive to
the overwhelming majority of Texans of all races who support this
ballot integrity measure,” Abbott said.

Capitol Hill

It's no surprise that Republican lawmakers in Texas would cry out for
“states' rights.” But what was shocking last week in the wake of the
federal filing was the reaction to it by Representative James
Sensenbrenner, the Ohio Republican who has been the Voting Rights Act's
most loyal conservative supporter.

“I spoke with Attorney General Eric Holder today and requested that
he withdraw his Section 2 lawsuit until there can be a legislative fix
of the Voting Rights Act,” Representative Sensenbrenner said. “The
lawsuit would make it much more difficult to pass a bipartisan fix to
restore the heart of the VRA that the Supreme Court struck down earlier
this year.”

The first thing to say about this comment is that is sounds like
political blackmail. What, the Justice Department is supposed to allow
an unconstitutional voting measure (remember, SB 14 was deemed
discriminatory by a unanimous federal panel last August) to go
unchallenged while waiting for Congress (which has not yet even
introduced a legislative response to Shelby County) to enact a law?
What, Congress now is going to punish registered voters by refusing to
restore Section 4 of the Voting Rights Act because the Justice
Department moved first to protect registered voters through the courts?

The second thing to say about this comment is that it sounds like
Representative Sensenbrenner is searching for an excuse for why
Republicans in Congress won't any time soon fix what the Supreme Court
broke in June. Texas is the outlier here. Not the Justice Department.

Instead of expressing disappointment with the Obama Administration
for acting quickly and decisively to implement what's left of the Voting
Rights Act, the representative should be hollering at his colleagues on
Capitol Hill to pay attention to all of the voter suppression measures
raised or passed in the South since Shelby County was decided.

The Federal Response

In announcing the lawsuit last week, Holder said: “We will not allow
the Supreme Court's recent decision to be interpreted as open season for
states to pursue measures that suppress voting rights.” On Saturday,
however, in an address before thousands in Washington commemorating the
50th anniversary of the March on Washington, the attorney general was
even more strident.

“We affirm that the struggle must and will go on until every eligible
American has the chance to exercise his or her right to vote
unencumbered by discriminatory procedures, rules or practices,” he said.

What we are seeing now is a political war that will be waged in legal
terms in part because of the Supreme Court's Shelby County ruling and
in part because of all of the voter suppression efforts that preceded it
(in Texas and around the country).

Just because state officials are offended by a federal lawsuit
doesn't mean the state law they seek to defend is constitutional. And
just because a state law makes it harder for people to vote doesn't
necessarily make it unconstitutional. The post-Shelby County world has
arrived, not with a quick Congressional fix to restore key voting
protections for minorities but with still more politically tinged
litigation.

In the meantime, if you really want to understand the federal
position, and what Texas has accomplished with this new law, and what
really is at stake in United States v. Texas, and why you should care
more than you already do about the broader national fight against voter
suppression, you are better off just reading the federal complaint —
the “gutter politics” of which Attorney General Abbott spoke. Here are a
few of its most pertinent allegations:

Against a backdrop of dramatic growth in the State's Hispanic
population, the Texas legislature advanced increasingly stringent and
burdensome voter ID bills over several legislative sessions beginning in
2005. This process culminated in the enactment of SB 14, a highly
restrictive law that when passed exceeded the requirements imposed by
any other state.

Legislative debate and public statements concerning these voter ID
bills contained anti-immigrant rhetoric. In addition, while the public
record contains statements suggesting that voter ID legislation was
needed to prevent noncitizens from voting, noncitizens may lawfully
possess several of the forms of identification required for in-person
voting under SB 14.

The State sought to minimize minority legislators' effective
participation in the debate concerning SB 14. The legislature and
Governor implemented a series of unusual procedures including
designating SB 14 as emergency legislation, which enabled the Senate to
consider the bill on an expedited schedule; amending Senate rules to
exempt voter identification legislation from the two-thirds majority
tradition usually required for bill consideration; and creating a select
House committee, whose members were hand-picked by the Speaker to
consider only SB 14.

While the stated purpose of SB 14 was to ensure the integrity of
elections, voter ID proponents cited virtually no evidence during or
after enactment of SB 14 that in-person voter impersonation — the only
form of election fraud addressed by the identification requirements of
SB 14 — was a serious problem or that the State's then-existing
identification procedures had failed to prevent in-person voter
impersonation.

The State knew or should have known that Hispanic and
African-American Texans disproportionately lack the forms of photo ID
required by SB 14, as compared to their Anglo counterparts.
Nevertheless, supporters of voter ID in the Texas legislature made
little to no effort to analyze the potential effect of photo ID
requirements on minority voters and rejected amendments requiring
investigation of the effect of SB 14.

The State knew or should have known that the process of obtaining an
EIC will impose a substantial burden on thousands of voters, especially
Hispanic and African-American Texans who are disproportionately poor and
disproportionately lack access to transportation.

Nevertheless, the Texas legislature consistently rejected amendments
intended to mitigate this burden, including measures providing for
expansion of the types of permissible voter IDs and measures to
alleviate the costs of transportation and underlying documents for
indigent voters.

Soon, Texas will have to explain why SB 14 does not violate the 15th
Amendment, the 14th Amendment, and what's left of the Voting Rights
Act. It will say it has a right under the 10th Amendment to make it
harder for its citizens to vote.

It will say the law burdens whites and minorities equally and that
the Supreme Court in 2008, in a case styled Crawford v. Marion County,
endorsed the type of voter ID law the state implemented here. United
States v. Texas is on. One side is going to win. The other is going to
lose. And in the meantime hundreds of thousands of registered voters in
Texas will be left to wonder if they still have a right to vote.