Does Texas' Preclearance Record Matter?

Oral arguments before the United States Supreme Court on Section 5 of the Voting Rights Act centered mainly on the action Congress took in 2006 when it renewed the measure for 25 years.

That’s not to say, however, that the nine justices charged with upholding or dismantling the provision won’t consider what’s happened in Texas since then.

Texas is one of nine states completely covered under the act, which mandates federal preclearance (either by a three-judge panel in Washington, D.C., or the U.S. Department of Justice) of election laws in states with histories of racial discrimination. A decision to keep Section 5 intact would prevent the state's voter ID law from taking effect in its current form and all future laws that affect voting would still be under federal scrutiny. It could also doom the redistricting maps drawn in 2011 by the Legislature; those maps didn't make it over the preclearance hurdle.

“They could also reach beyond 2006 and say, ‘It was reasonable because you have all these problems in section 5 jurisdictions including Texas,’” said Michael Li, an attorney who writes a well-respected blog at Texas Redistricting and Election Law.

If that is the case, Li said, an amicus brief filed by the Mexican American Legal Defense and Educational Fund, the Mexican American Legislative Caucus and the Texas chapter of the NAACP, could help sway Justice Anthony Kennedy, who Li and media outlets in Washington said is the swing vote. Kennedy expressed concerns over whether the act infringes on states’ rights.

The Texas groups' brief specifically cites what the lower court called the state Legislature’s discriminatory intent in drawing redistricting maps, and what the judges said about the state’s voter ID bill, saying it is a “retrogressive law that the court condemned as ―almost certain to disproportionately affect racial minorities.”

Attorney General Greg Abbott, who filed an amicus brief in support of Shelby County — that is, against continuing Section 5 — said Supreme Courts existed to overturn lower courts and said that fact has already boded well for the state in one instance.

“We’ve seen that already with the redistricting process in Texas when after the first redistricting decision came out of the lower courts, we got a unanimous Supreme Court to overturn that,” said Abbott, who served on the Texas Supreme Court before becoming AG. “The lower court is just the first step along the way and we should all be respectful of higher court review.”

He also warned against forecasts based on this week's oral arguments.

“As a former Texas Supreme Court justice, I can be the first to tell you, you can’t read too much in to what justices say from the bench,” he said. “Second thing, though, that may give greater insight here, is looking more at the level of consistency of the comments from the bench with prior written statements by some of the key justices.”

Those statements include Justice Kennedy’s concerns on federalism. According to Lyle Denniston of SCOTUSblog, Kennedy "used the phrase 'trusteeship of the United States government' as a shorthand way to describe how he views the regime set up by the Voting Rights Act of 1965.  Of course, he meant it as a denunciation."

That said, Abbott urged patience.

“But again, no one can take to the bank any statement made from the bench by a justice because they are going through the evaluative process,” he said. “We really won’t know until a decision comes out.”

A decision is expected in June, Abbott said. The state will decide then how it will move forward, he added.