Texas Republicans might be pleased by the news that the Supreme Court will review Section 5 of the Voting Rights Act, which was signed into law by Lyndon B. Johnson in 1965. They’ve been looking for this fight for a long time. And while Texas isn’t the only state to cross swords with the feds over voting laws lately, the state’s high-profile and protracted court battles over voter ID and redistricting are a big reason that the Supreme Court is revisiting Section 5, which was renewed by Congress (and signed by George W. Bush) in 2006.
The constitutional question in the current case, which is Shelby County v. Holder, is whether Congress was within its rights to have done so, in light of the progress that has been made thus far. Understanding this requires some background. The Voting Rights Act bars states from passing voting rules that discriminate on the basis of race—intentionally or unintentionally. Section 5 holds that in certain states or parts of states with documented or prospective problems in that regard—all of Alabama, parts of Florida—any changes to the existing rules will be subject to “preclearance” by the federal government, to ensure that those changes don’t amount to discrimination.
It’s a federal restriction on state authority, that is, one which only applies to certain states. And while it’s broadly true that the states subject to Section 5 have a history of trampling civil rights, it’s not true that Section 5 simply applies to the former Confederate states. Texas, for example, was not among the states originally subject to Section 5, despite the fact that it was one of the five states that still had a poll tax in 1964, when the 24th Amendment (which outlaws the poll tax) was ratified. Texas wasn’t covered by Section 5 until 1975, when Congress revised the formula that determines which states are covered, in an attempt to address any racial disenfranchisement that might result if a state with a large population of non-English speaking voters neglected to provide information about voting in any language other than English.
Congress has the right to make and enforce such laws because of the 15th Amendment, which outlaws voter discrimination on the basis of race. But for a state-sovereignty enthusiast such as Texas Attorney General Greg Abbott, the 2006 renewal was a step too far. The state’s new voter identification law, in his view, is a critical tool in the fight against voter fraud (which is extremely rare). The most recent round of redistricting, he maintains, yielded a legal set of district maps, even if one federal court ruled that they were intentionally discriminatory.
For Democrats, of course, the fact that Republicans in states like Texas and Alabama and South Carolina are making these arguments shows why Section 5 is still needed. To be fair to Texas’s Republicans, however, the motive in both cases is presumably partisan rather than racist; that was the case during the legendarily contentious 2003 redistricting effort, in which Republicans set their sights on the Anglo Democrats in the state’s Congressional delegation. Given that Hispanic and African-American voters favor Democrats, however, the recent Republican efforts to secure a structural advantage for their side may be indistinguishable from an effort to suppress minority turnout—and the Voting Rights Act disallows rules that are effectively discriminatory, even if unintentionally so.
A strange aspect of the situation is that until recently Republicans didn’t have so much political incentive to marginalize Hispanic voters. Over the past two or three decades Republican statewide candidates have generally managed to secure a reasonable plurality of the Hispanic vote. In 2010, for example, Rick Perry won 38 percent of the Latino vote in Texas. That’s not a win, but, it’s a sight better than Mitt Romney managed in the national popular vote this year. What’s changed? Part of the explanation, surely, is that in recent years one of the parties has doubled down on issues such as voter ID. Pundits might appreciate the irony there. Voters apparently don’t.