In 1965, Congress passed the Voting Rights Act, one of the most important pieces of legislation in U.S. history. It contained key protections for minority voters, especially blacks, who had been effectively disenfranchised in the South. The act was a remarkable success, increasing minority voter registration and turnout rates within a few years. In 1982, an important amendment made it much easier for minority voters to elect candidates of their choice. Then, following the contested 2000 elections, states started passing new voting rules along partisan lines. As part of these voting wars, conservative states began passing laws making it harder to register and vote, restrictions that seemed to fall most on poor and minority voters. In the midst of all of this, the Supreme Court in 2013 struck down a key component of the Voting Rights Act. It had required states and jurisdictions with a history of racial discrimination in voting to get permission from the federal government before making a voting change by proving that the proposed change would not make it harder for minority voters to vote and to elect their preferred candidates. Don’t worry, Chief Justice John Roberts assured the American public in that 2013 case, Shelby County v. Holder. Although states with a history of racial discrimination would no longer be subject to federal “preclearance” of voting changes because preclearance offends the “equal sovereignty” of states such as Texas, there’s always Section 2 of the Voting Rights Act. That provision, Roberts explained, is available “in appropriate cases to block voting laws from going into effect. … Section 2 is permanent, applies nationwide, and is not at issue in this case.”
So the federal government and civil rights plaintiffs have used Section 2 as their best remaining protection. They used it to go after Texas for enacting one of the strictest voter ID laws in the nation and North Carolina for passing an omnibus voting rights rollback. Somewhat surprisingly, a panel of the conservative U.S. Court of Appeals for the 5th Circuit recently agreed that Texas’ decision to enact a strict voter ID law, without proof that the law is necessary to prevent voter fraud or promote public confidence, violated Section 2.
But now Texas has upped the ante, arguing that if Section 2 indeed makes its voter ID law illegal, then Section 2 violates the Constitution. That means the other great statutory protection of minority voting rights would suffer the same fate as the preclearance provision and leave minority voters with few protections from unwarranted new voting hurdles.