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

The Justice Department's lawsuit is the latest battle in a nasty political war between the Obama administration and its most conservative critics.
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Texas Attorney General Greg Abbott describes the challenge to his state's voter ID law as "gutter politics." (Mike Stone/Reuters)

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the diplomatic language of Chief Justice John Roberts' majority opinion in Shelby County, the one that softly declared outdated Congress's "coverage formula" for determining which discriminatory jurisdictions warranted federal "preclearance" oversight for changes to voting measures.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.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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