Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of “Election Law Stories.” Follow him on Twitter @JoshuaADouglas. The opinions expressed are his own.
Joshua Douglas: Federal courts have stepped in to put an end to Texas' discriminatory voting laws and regulations
The rulings could serve as lessons for other states considering new election laws, he says
It has become a disturbing pattern: Texas has systematically engaged in voter discrimination and suppression.
In the past few weeks, in a series of separate rulings, federal courts have found that the state intentionally discriminated against minority voters by enacting a strict voter ID law, unfair redistricting plans, and unlawful rules on language assistance at the polls. It’s important that the Supreme Court affirm these rulings.
Voter discrimination, for any reason, should never occur, yet Texas’ experience should serve as a wake-up call to other states considering new election laws. It should also prompt courts and policymakers to stand up for minority rights.
Indeed, the federal courts have painted a poor picture of Texas’ actions on voting rights: The Republican-controlled Legislature has systematically discriminated against minority voters in an effort to retain its majority status in the state.
This pattern may well cause federal judges to place Texas back under federal supervision under the Voting Rights Act, which would require the state to seek preapproval from the federal government or the courts before enacting new voting laws. After the Supreme Court’s 2013 decision in Shelby County v. Holder, gutting a major provision of the Voting Rights Act, this option is available only if a court finds intentional discrimination – which, say the courts, has now occurred in Texas several times.
To review: First, late last month a federal district judge held that Texas purposefully discriminated against minority voters through its strict voter ID law, knowing that minorities would have a harder time complying with the requirement. The court found that various aspects of the law – such as the type of ID it required, obstacles to obtaining an acceptable ID, and inadequate education on the measure – were intended to discriminate against African-American and Hispanic voters.
The case bounced around the federal court system, with judges consistently ruling against Texas’ law. Texas has now brazenly asked the court of appeals to allow it to keep using the law, barely acknowledging that several federal judges have found it discriminatory. The battle is likely to reach the Supreme Court in the coming years.
Second, a three-judge federal district court panel issued a series of rulings holding that Texas’ redistricting plans were unlawful racial gerrymanders. The latest decision, handed down just after the voter ID ruling, held that the state’s 2013 redrawing of the map for its state House districts intentionally discriminated against minority voters in four of those districts. The court required Texas to redraw them ahead of the 2018 election.
Just a week earlier, the same three-judge district court panel invalidated two of Texas’ congressional districts for the same reason, finding intentional discrimination. The court was set to hold a hearing the following week on a remedy to this gerrymander, with the potential that the judges would draw a new map for the 2018 election, but Justice Samuel Alito put the lower court’s decision on hold as the full Supreme Court considers the appeal.
Third, the Fifth Circuit Court of Appeals ruled against a Texas law requiring voters in need of language assistance to receive it only from a registered voter from the same county. The court found that this limitation violated the Voting Rights Act, which allows individuals to choose whomever they want to help, so long as that person is not their employer or union leader. This ruling will have a tangible impact on many Latino voters in the state, making it easier for them to receive the language assistance they need.
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One or more of these cases is sure to reach the Supreme Court. The justices will then have an opportunity to rule against these discriminatory actions and send a clear message that politicians should not be able to rig election results by manipulating who may vote and how representation occurs. If Texas is allowed to continue its shenanigans, however, then all bets are off on any meaningful limits to partisan manipulation in the future.
Texas’ experience should also sound a caution bell to other states, like North Carolina, that are considering new election rules. North Carolina is engaged in a divisive redistricting debate and the courts have previously invalidated its voter ID law, citing its discriminatory purpose and effect.
The Fourth Circuit Court of Appeals found last year that the state’s new election laws targeted “African-Americans with almost surgical precision.” Given this history, North Carolina legislators, and lawmakers from other states, should pause before they enact new rules with a partisan and discriminatory purpose that hamper the fundamental right to vote.
Finally, Attorney General Jeff Sessions’ Department of Justice must rethink its position on voting rights. Under President Barack Obama, the DOJ had joined the plaintiffs against Texas’ voter ID law; the new administration reversed course and told the court that it no longer believes Texas’ law had a discriminatory purpose.
But this should not be a partisan issue: Discrimination is discrimination, regardless of which political party is in the White House. If the Trump administration truly wants to demonstrate a commitment to democracy and racial equality, it should recognize the clear implication of these judicial rulings and support plaintiffs who challenge discriminatory voting laws.
In the end, we can celebrate the independent federal judiciary serving as a stopgap to the worst abuses in the voting process. Voting discrimination may be bigger in Texas, but as the past few weeks have shown, so is Texas federal judges’ ability to stop it.