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.