It has been 48 years since the landmark legislation known as the Voting Rights Act was enacted and 38 years since Texas was added to the list of states covered under one of the act’s key provisions — Section 5. It requires federal clearance of any changes in the state's election laws.
That could all change in February if the U.S. Supreme Court decides it’s time to amend or eliminate Section 5, which requires either a district court in Washington or the U.S. Department of Justice to approve laws that affect elections in states or territories with histories of racial discrimination. Texas is one of nine states entirely covered by Section 5. Other states, like California and Florida, are partially covered. Section 5 was renewed in 2006, under President George W. Bush, and is in place until 2031 unless the courts strike it down.
Lawmakers saw its effect in force this year, when Texas’ redrawn political maps and the state’s contentious voter ID laws were denied federal preclearance. Now, GOP champions of voter ID and redistricting are hopeful the nation's highest court will make the measure a part of history.
In the case, Shelby County, Alabama v. Eric Holder, et al., the plaintiffs argue that Section 5 “is seriously flawed and undermines the principle of equal sovereignty,” and that Congress overstepped its authority when it extended the act in 2006. Texas Attorney General Greg Abbott filed an amicus brief with the court in August supporting Shelby County’s claim.
“As recently as two months ago, Justice [Anthony] Kennedy stated from the bench that Section 5 places Texas at a disadvantage compared to other states,” Abbott wrote then. “The Department of Justice is using Section 5 to deny Texas the right to enforce a law that is allowed under the U.S. Constitution. Section 5 cannot trump the Constitution."
David Richards, a veteran civil rights attorney, cautioned against predicting what the court might do, but said one vote could be the deciding factor. The issue, he added, is nothing new to the court, which considered the provision in 2009.
“We’re dealing with a court that’s divided four-four on the continuation of the statute with [Justice] Kennedy being in the position about which way it goes,” he said.
The court could also establish a middle ground, he said.
“Anyone that thinks they can predict what the world is going to look like in 25 years is full of beans,” he said. “But … a midpoint position could be that Congress may well have justification for extending the act — there’s been a history that justifies it — but the 25-year extension is excessive and [lawmakers] are going to write a drop dead date for the extension.”
Analysts have pointed to the November election and its high turnout rate among minorities and seniors as a sign that voter suppression doesn’t exist. Others argue that the high turnout was a result of the law's protections.
Attorney Michael Li, who runs the website Texas Redistricting, said one election is not enough to support either theory completely.
“Just because you have some bad laws doesn’t mean you can’t win some of the time,” he said. “And just because you win some of the time doesn’t mean you’re not still moving backward” and being discriminatory.
What is known, he added, is that Texas lawmakers were found by a panel of federal judges to have intentionally discriminated when lawmakers drew the current redistricting maps. Only the preclearance check in Section 5 stopped them.