Since 2010, Republicans in more than a dozen states, including Texas, have enacted laws either making voting harder, especially for minorities, or locking in GOP election gains with gerrymandered congressional and legislative redistricting.
That makes it even more ironic that the Supreme Court this week is taking up a case that could lead to the end of the most important legal protection against such tactics.
The court will hear an Alabama case challenging the relevance of the 1965 Voting Rights Act’s Section 5, which requires the Justice Department or federal courts to sign off on voting-law changes before they are made in part or all of 16 states with a history of voter discrimination. That includes Texas.
The case comes four years after the court signaled doubts about the landmark law’s future. In a case involving an Austin municipal utility district, the high court said the law’s “pre-clearance requirements and its coverage formula raise serious questions.”
While exempting the Austin district from pre-clearance, the court declined to judge the law’s constitutionality. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today,” Chief Justice John Roberts wrote.
In the past year, the federal government has twice used Section 5 to find discriminatory intents by Texas’ Republican legislative majority.
In March, the Justice Department refused pre-clearance to a voter-identification law it said showed neither necessity nor evidence that it wouldn’t discriminate against Hispanics. In August, a federal appeals court struck it down as racially discriminatory.
Another three-judge federal court rejected Texas’ congressional redistricting plan, which ignored Hispanic growth by creating four predominantly white Republican districts. “The parties have provided more evidence of discriminatory intent than we have space, or need, to address here,” the court said.
Texas appealed both cases to the Supreme Court, where consideration awaits a ruling in the Alabama case.
The Voting Rights Act was passed at the height of the civil rights revolution to replace statutes requiring the federal government to file cases in each county against discriminatory practices, including jury trials in areas with minimal minority participation.
As a young AP reporter in New Orleans, I covered these cases and the first votes in 80 years cast by African-Americans in some areas.
The act required specified states and localities with low minority participation to show they had overcome their histories of discrimination. It passed by large bipartisan majorities after violent clashes that followed efforts to keep blacks from voting. The law has been renewed four times, most recently in 2006 for 25 years.
Despite overwhelming congressional votes, the report accompanying the 2006 renewal included covert efforts to undermine the law. Several Republican lawmakers, including Texas Sen. John Cornyn, criticized aspects of the law for which they had just voted.
The enormous increase in minority voting indicates “the act has largely achieved the purposes that Congress had intended,” Cornyn and Republican Sen. Tom Coburn of Oklahoma wrote, adding that “the logical question before us was whether these provisions under Section 5 should have been reauthorized.
“For example,” they wrote, “of the 254 counties in Texas, only 22 are implicated by the accounts of discrimination submitted in the record.” They then wrote, “This analysis admittedly excludes any accounts of statewide discrimination,” such as redistricting.
But the GOP-controlled legislature showed in 2011 why the act is still needed by passing what may be the country’s most restrictive voter-identification law and discriminatory redistricting plans.
The stakes go beyond the Alabama case, in which a suburban Birmingham county challenged the fact that the formula defining which jurisdictions are covered has not been changed since 1975.
Some analysts saw the Austin case as a warning to lawmakers that, unless they updated coverage formulas, the law was in jeopardy. But Congress has not acted and, given partisan gridlock, is unlikely to come to the rescue of the law, despite clear evidence that today’s conditions still require it.
Carl P. Leubsdorf is the former Washington bureau chief of the Dallas Morning News. Distributed by MCT Information Services.
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