[EL] thoughts on Texas voter id en banc petition

[Rick Hasen]

    “Texas Two-Steps All Over Voting Rights; It says it can make voting
    as difficult as it wants to, and any law that says otherwise is
    unconstitutional.” <http://electionlawblog.org/?p=75791>

Posted onSeptember 2, 2015 9:41 am 
<http://electionlawblog.org/?p=75791>byRick Hasen 
<http://electionlawblog.org/?author=3>

I have writtenthis piece 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2015/09/voting_rights_act_sections_2_and_5_texas_defends_voter_id_laws.html>for 
/Slate/.  It begins:

    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 ofthese voting wars
    <http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300198248/ref=la_B0089NJCR2_1_5?s=books&ie=UTF8&qid=1441121721&sr=1-5>,
    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/
    <https://supreme.justia.com/cases/federal/us/570/12-96/opinion3.html>.
    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.”

It concludes:

    Let’s not mistake what Texas is doing here. To seem more moderate,
    it couches its constitutional arguments in the language of
    “constitutional avoidance,” not exactly saying that Section 2 is
    unconstitutional but saying that the courts should read it narrowly
    because otherwise the law would be unconstitutional. In practical
    terms, that’s a distinction without a difference. In either case,
    according to Texas, the result is that Section 2 cannot offer
    protection for racial minorities in vote denial cases.

    If the argument succeeds, then Roberts’ promise in/Shelby
    County/that minority voters will be protected by Section 2 after the
    death of preclearance will prove to be tragically empty. And the
    Texas two-step will stomp out what remains of protections for
    minority voters from the new vote denial.

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Posted inSupreme Court <http://electionlawblog.org/?cat=29>,The Voting 
Wars <http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>

-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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