Texas Attorney General Greg Abbott (R)
When the Supreme Court dismantled a key provision of
the Voting Rights Actlast June, there were two small silver linings
in this decision. The first was the possibility that Congress could revive the
regime killed by the Court, where states with particularly poor records of
racialized voter suppression must “preclear” their voting practices with the
Justice Department or a federal court before those practices can take effect.
The second potential silver lining is Section 3 of the Voting Rights Act, which
allows a state to be brought back under the
preclearance requirement if a
court finds that it engaged in “violations of the fourteenth or fifteenth
amendment justifying equitable relief.”
Now, however, Texas wants
to destroy these two silver
linings as well. And there is a fair chance that the conservative
Supreme Court will allow them to do so.
Late last month, the
Justice Department joined a Section 3 lawsuit claiming that federal supervision
of Texas’ election practices should be reinstated in light of very recent
examples of intentional race discrimination by Texas. Among other things, a
federal court found that Texas “consciously replaced many of
[a] district’s active Hispanic voters with low-turnout Hispanic voters in an
effort to strengthen the voting power of [the district's] Anglo citizens.”
These, the Justice Department explained, were “violations of the fourteenth or
fifteenth amendment” justifying federal supervision.
Texas’ response to the
Justice Department does not simply reject the idea that it should be subject to
preclearance, it calls upon the courts to declare virtually any preclearance
regime unconstitutional. According to Texas, the Supreme Court’s decision
hobbling the Voting Rights Act “threw out Congress’s reauthorization of a
preclearance regime because the legislative record failed to show ‘anything
approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’
discrimination that faced Congress in 1965, and that clearly distinguished the
covered jurisdictions from the rest of the Nation at that time.’” In other
words, Texas wants a federal court order saying that any effort to reinstate the
Voting Rights Act in Texas is unconstitutional unless Texas transforms into
Mississippi at the height of the Jim Crow era.
And they may very well
succeed in getting this order. While Texas’ theorycannot be squared with the text
of the Fifteenth Amendment — which
provides that “[t]he right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of race,
color, or previous condition of servitude,” and gives Congress “power to
enforce this article by appropriate legislation” — it is not that hard to square with
the Supreme Court’s recent decision. Chief Justice John Roberts’
opinion does indeed contain language suggesting that only something
“approaching the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination
that faced Congress in 1965″ can permit a preclearance regime now. The fact
that this language flies in the face of the Constitution is not likely to
bother the five conservative justices who already signed onto it once.
As a final act of chutzpah,
Texas also claims that it cannot be subject to preclearance because “Hispanic
citizens in Texas registered to vote at higher rates” than Hispanics in other
states not subject to federal supervision under the Voting Rights Act. That
very well be true, but it’s also besides the point. The thrust of the Justice
Department’s lawsuit is that Texas intentionally drew its district lines so
that white votes would count more and Hispanic votes would count less. In other
words, the whole purpose of these lines was to make sure that it didn’t matter
if Hispanic voters registered at high rates because their voting power would
still be diluted by gerrymandering. It’s like a basketball referee claiming
that it doesn’t matter that he’s not counting all the points scored by one team
because that team is taking more shots.
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