Texas May Have To Go Hat In Hand To The Feds (Again) To Change Voting Rules

Apr 27, 2017

Several weeks ago, a federal court ruled Texas lawmakers intentionally diluted the voting power of minorities when it drew up congressional districts in 2011; last week the same court ruled the Texas House maps also were drawn with the intent to discriminate.

Today, the court begins hearings on how to remedy this situation, which could include requiring the state to get federal preclearance before any new maps or voting rules go into effect.

Preclearance works like this: Say a state wrote a new rule on voting procedures or drew up new political maps after the census. A state that's under preclearance can’t just start putting that law or map into effect. It needs to get permission.

Specifically, the state needs to get those laws or maps OK’d by the Justice Department or a federal court in Washington, D.C. Then, the court or the DOJ can either let the state implement it, or they can block it if they think it will adversely impact minority voters.

For decades, a list of states and counties that had to do this was included in Section 5 of the Voting Rights Act. Due to its long history of discriminating against minorities, Texas was on the list.

But in 2013, the Supreme Court struck down that part of the law.

“Like many others across the country, I am deeply disappointed – deeply disappointed – with the court’s decision in this matter,” then-U.S. Attorney General Eric Holder said at the time.

During a brief response to the ruling that summer, Holder explained why federal preclearance was still needed. He cited Texas as the first example.

“Last year a federal court cited the value of the Voting Rights Act in blocking the Texas congressional redistricting map on the grounds that it discriminated against Latino voters,” he said. “In that case the court noted that the parties – and now I am quoting, this is from the court – the court noted that ‘the parties provided more evidence of discriminatory intent than we have space or need to address here.’”

The Supreme Court’s reasoning for striking down Section 5 was that the list of states and counties that had to adhere to federal preclearance was outdated. Justices claimed they shouldn’t be held accountable for the past anymore.

But there were other parts of the Voting Rights Act that stayed intact.

Michael Li with the Brennan Center for Justice says because of the recent rulings on Texas redistricting, Section 3 of the Voting Rights Act could apply. That section of the law allows courts to prescribe preclearance if a state discriminates.

“Because the court found that Texas was intentionally discriminatory, the court could – as the plaintiffs have requested – bail Texas back in to preclearance coverage under Section 3 of the Voting Rights Act,” he says.

So, even though the state doesn’t have to be held accountable for the past anymore, the law still has some power in the present.

Before the rulings on the congressional maps, another federal court ruled the state voter ID law from 2011 was discriminatory. All this gives Li, who is part of the plaintiffs' legal team in this case, more ammunition to ask for Texas to be placed back under federal preclearance.