Last week, the State of Texas filed a brief responding to arguments that Texas should be ‘bailed in’ to preclearance coverage under section 3 of the Voting Rights Act. The brief makes any number of technical and procedural arguments, and the courts will have to sort through those in due course. But it’s worth pausing to consider two of the more far-reaching claims in the brief. The first of these is the claim that the Supreme Court’s decision in Shelby Co. means that ‘bail in’ under section 3 is now limited to situations like those that existed in the Deep South in the 1960s and that:
To suggest that Texas has engaged in or will engage in 1960s style ‘common practice of staying one step ahead of the federal courts by passing new discriminatory voting laws’ is absurd on its face.
Now, set aside, for the moment, Texas’ recent history of doing things like trying to re-draw CD-23 – in not one but two successive redistricting cycles – to take away the ability of Hispanic voters to elect their candidate of choice. Or its long record of other Voting Rights Act violations. Instead, stop and ponder this: Texas wasn’t originally subject to preclearance under section 5 of the Voting Rights Act. That’s right. Although it’s sometimes forgotten today, Texas didn’t become covered under section 5 until the 1975 amendments to the Act.
In other words, for all the real problems Texas had in civil rights era, its record was nothing like that of places like Lowndes County, Alabama, which in 1965 was 80% African-American but had managed to have not a single African-American registered voter.
Instead, as Congresswoman Barbara Jordan explained in the floor debate on the 1975 amendments, discrimination in Texas took a subtler form. While Texas may not have employed more obvious devices like literacy tests:
School boards which have been abolished or reduced in order to prevent minority membership on the board; redistricting legislation which focuses on multimember districts; polling places removed without notice; annexation by cities and counties in an effort to dilute minority votes; that is what is happening.
If Attorney General Abbott is right in his interpretation of the permitted reach of section 3, it would be a very narrow reading indeed – one so restrictive that it would have excluded Texas from being covered by section 5 in the first place.
And it would set conditions for imposition of preclearance unlikely ever to be met since it is practically impossible to envision a return to the conditions of 1960s Mississippi or Alabama.
The Supreme Court, of course, will have the final word – but have no doubt General Abbott is asking for a sweeping limitation on the power of the federal government to enforce the 14th and 15th amendments.