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the diplomatic language of Chief Justice John Roberts' majority opinion in Shelby County, the one that softly declared outdated Congress's "coverage formula" for determining which discriminatory jurisdictions warranted federal "preclearance" oversight for changes to voting measures.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

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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