Messing With Texas Again: Putting It Back Under Federal Supervision

Readers of the entire 147-page opinion issued earlier this month by a federal district court striking down Texas’s strict voter identification law as unconstitutional and a violation of the Voting Rights Act might have been too exhausted to realize that the opinion’s very last sentence may be its most important. The court ended its opinion with a dry statement promising a future hearing on “plaintiffs’ request for relief under Section 3(c) of the Voting Rights Act.” That hearing, however, has the potential to require Texas to get federal approval for any future voting changes for up to the next decade, and to make it much more difficult for the state to pass more restrictive voting rules. It may be much more important than the ruling on the voter ID law itself.

From 1975 through 2013, Texas was one of a number of (mostly Southern) states and jurisdictions which were subject to “preclearance” under Section 5 of the Voting Rights Act. This meant that before Texas could make any changes in its voting rules (such as enacting a voter identification law or passing a new redistricting plan) it had to demonstrate either to the United States Department of Justice or to a three-judge federal court in Washington D.C. that its change was not intended, and would not have the effect, of making minority voters worse off.

Texas enacted its voter identification law in 2011, but the Department of Justice believed it was discriminatory, and a three-judge court rejected Texas’s request to implement the law.

In 2013, the United States Supreme Court in the Shelby County v. Holder case held that the preclearance provisions of the Voting Rights Act could not be enforced against Texas or the other covered jurisdictions because the formula (contained in Section 4 of the Act) used to pick who was covered was outdated. The formula was based in part on voter turnout from the 1960s and 1970s. The Court held that such an infringement on state sovereignty could be justified only based on current evidence of racial discrimination in voting. As soon as the Court issued its ruling, Texas announced it intended to enforce its voter ID law, and it faced a new lawsuit.

Importantly, the Supreme Court in striking the Section 4 coverage formula did not also strike Section 5, the preclearance provision itself. (Only Justice Thomas voted to do that.) And Section 3 of the Act provides that a Court could order a jurisdiction “bailed in” to Section 5 preclearance for up to ten years upon proof the jurisdiction engaged in current racially discriminatory conduct in violation of the Constitution.

The federal court in the Texas voter identification has not held yet that Texas will be bailed back into federal oversight for its voting rules. The choice is discretionary on the part of the court upon a finding of intentional racial discrimination in voting. But the court already has found that Texas had enacted the voter identification law and its recent redistricting laws with racially discriminatory purpose to minimize the voting strength of Hispanics and African-American Texas voters. With that predicate, and detailed opinion providing specific examples of such discrimination, the court is poised to place Texas under court review.

If the court puts Texas back under federal preclearance, it will be a victory for Eric Holder and the Department of Justice, which is using lawsuits in Texas and North Carolina as test cases to try to restore preclearance to those states that seem to be engaging in the most discrimination.

The DOJ got lucky to draw as the trial judge in the Texas voter ID case Judge Nelva Gonzales Ramos, an Obama appointee who drafted a well-reasoned and comprehensive opinion slamming the state of Texas for discriminatory and unconstitutional conduct.

Usually a judge’s factual findings, such as those that Texas engaged in racial discrimination, get deference from appellate courts as cases make their way through appeal. If so, Texas would likely have a hard time fighting a bail-in order given the strength of the judge’s findings.

But Texas will get to appeal any bail in order to the United States Court of Appeals for the Fifth Circuit, considered one of the most conservative courts in the Nation. And any further appeal will go to the U.S. Supreme Court, the same court which on an emergency basis allowed Texas to implement its voter ID law for its election despite Judge Ramos’s findings that the law was passed in a racially discriminatory and unconstitutional manner.

One issue which will surely come up on appeal is whether what the trial judge characterized as racial discrimination is more properly thought of as discrimination against Democrats. Separating the two is kind of a silly exercise in Texas, where the majority Anglos are overwhelmingly Republicans and the majority of minority voters are overwhelmingly Democrats. But if the appellate courts see this as a political rather than racial struggle, they could reverse any bail-in order of the trial court. Sadly, the courts may hold that discriminating on the basis of party (rather than race) is perfectly legal. How this ends is uncertain.

Despite the recent Supreme Court order letting Texas use its voter ID law in this election, the case is far from over, and in fact the most important ruling in the case is yet to come. Voters may get their protection from discriminatory laws yet.

Professor Richard L. Hasen is Chancellor’s Professor of Law and Political Science at the University of California, Irvine. He is at work on a book on campaign finance reform and political equality for Yale University Press.

Correction: This article originally said Texas came under preclearance in 1965.