Earlier this week, Attorney General Eric Holder declared in his address to the NAACP national convention in Houston what many voting rights advocates had been saying for months: that the photo voter ID law passed in Texas is a poll tax. Determining whether voter ID laws are as unconstitutional as poll taxes won’t be up to him, though. That honor goes to the US Supreme Court justices who lately have been signaling they may be ready to gut the 1965 Voting Rights Act. What this means is that a legal challenge to a voter ID law in Texas could be the trigger for the demise of the constitutional act that made it possible for people of color to vote in much of the country. Right-wing pundits have all but conceded this week’s US District Court hearing over Texas’s voter ID law to the Department of Justice. There’s agreement on the left and the right that Texas didn’t do a good enough job proving that the law has no discriminatory purpose nor effect. Experts have testified that almost 1.4 million Texans could be disenfranchised due to lacking ID. The state’s argument wasn’t helped by Texas state Senator Tommy Williams, an author of the voter ID law, who said, “I think people who live in west Texas are accustomed to driving long distances for routine tasks,” when confronted with the fact that the closest DMV for some low-income Texans could be dozens of miles away.
None of this may matter, though. If the district court judges rule that Texas’s law should not be cleared by DOJ, then that could set it up for a fast-track hearing before the Supreme Court. And the Court has indicated that it is ready to throw Section 5 of the Voting Rights Act—the part that gives DOJ preclearance authority over Texas’s election laws—out altogether, which would trigger a rollback of voting rights expansions made since the civil rights movement. There is little optimism that Chief Justice John Roberts will do for VRA what he did for the Affordable Care Act. Section 5 is to the VRA what the individual mandate is to ACA, but Roberts has little sympathy for laws that remedy histories of racial discrimination.
Duke University election law professor Neil Siegel told Politico, “He’s a deeply committed conservative on matters of race. On the challenge to the Voting Rights Act, he’s warned Congress we’ll strike it down if you don’t change it.” If the Roberts Court overturned VRA, it would be a grand departure from the SCOTUS decision of 1944, Smith v. Allwright, which helped launch the movement toward civil rights and voting justice for all Americans. That 1944 case involved an African-American man named Lonnie E. Smith who challenged the Texas Democratic Party, which forbade anyone except white people from voting in its primaries. Since Texas at the time was a one-party, Democrat-ruled state, the primaries determined who would win its general elections, guaranteeing black Texans would have no say in who would represent them in government.