Texans deserve the full protection of the Voting Rights Act

*Any time legendary civil rights attorney Al Kauffman has something to say I consider it worthy of publication. VL


By Al Kauffman, NewsTaco (6 minute read)

Section 5 of the federal Voting Rights Act required states with a history and pattern of voting discrimination against minorities to have changes in their election systems precleared by the U.S. Department of Justice or a federal court before they could be implemented.

Texas needed this preclearance requirement when Section 5 was applied to the state from 1975 to 2013. Even though the U.S. Supreme Court overruled Section 5 in 2013, Texas still deserves to be covered by the provision now.

Texas continues to discriminate against Latinos and African-Americans in voting. Texas implements discriminatory policies, suffers their overruling in court, complains about court and national overreach, and then designs new ingenious ways to reinstitute the discriminatory policies.

Congress applied Section 5 to Texas because of this pattern.

Now, Texas and many other states are following the same pattern — again. Texas and these other states deserve the reimposition of the Voting Rights Act, whether by court order or legislation.

To understand some of the techniques these states have used over the past 100 years, let’s look at some examples from Texas and explore why preclearance is necessary.

In 1927, the U.S. Supreme Court held unconstitutional a Texas law that denied African-Americans the right to vote in the Democratic primary. Texas immediately passed a law giving political parties the right to control who could vote in their primaries. Then Democrats decided not to allow African-Americans to vote in their primary.

In 1932, the court declared that law unconstitutional. Always ingenious, Texas then passed a law guaranteeing political parties the right to control their membership. Democrats, who controlled the Legislature that wrote the law, determined that only white citizens could be members of their party. In 1944, the court declared that unconstitutional.

In the 1960s and 1970s, the Supreme Court declared that Texas had the most restrictive registration practices in the country. In its first case declaring multimember districts unconstitutional, the Supreme Court declared in 1973 that the Texas system of electing state representatives from county multimember districts rather than single-member districts discriminated against African-Americans and Latinos.

This sad history of discrimination — combined with Texas’ policy of using English-only ballots in places where many voters could not understand English — led Congress to apply Section 5 of the Voting Rights Act to Texas in 1975.

I was fortunate to work on the first Voting Rights Act cases in Texas. These cases are good examples of why the Voting Rights Act was so needed here.

For decades, Texas paid for the primary elections of political parties that won more than 2 percent of the vote in the previous gubernatorial election. Republicans and Democrats each won more than 2 percent, so the state paid for their primaries. In 1972, the Raza Unida Party, formed by Mexican-American activists, won 6 percent of the vote for governor. In 1973, Texas changed its statute to pay only for primaries of political parties that won more than 20 percent of the vote in the last election.

The same year, Texas purged the voting rolls of all registered voters and required everyone wanting to vote to re-register. Latinos and African-Americans had a legitimate historical fear of the voting process; that purging of the rolls would have decimated minority voting rolls.

Texas could not show that the primary financing and registration bills were not discriminatory and, based on the Voting Rights Act, federal courts stopped those two bills from going into effect.

Both Republican and Democratic Justice Departments enforced the Voting Rights Act in Texas from 1975 to 2013. Texas continued to design discriminatory redistricting plans and registration and voting procedures. Section 5 stopped some of these plans in 2011 and 2012.

The state redistricting plans in 2011 were designed to increase white-dominated districts and reduce districts in which Latinos and African-Americans could elect the representatives of their choice.

Texas’ voter ID bill is one of the most restrictive in the country. During the legislative session in 2011, House and Senate members offered amendments to make very harsh requirements of the act more humane and less discriminatory against Latinos, African-Americans and the poor. Texas Republicans resisted these efforts to amend the voter ID bill, passing a bill that was unnecessarily demanding in requiring documentation to vote

Texas could not show that its voter ID bill and Texas House and congressional redistricting plans did not discriminate, so these laws could not be enforced. A federal court held that Texas could not show that the voter ID bill did not discriminate.

Tragically, the Supreme Court declared the preclearance provisions unconstitutional in June 2013 — in effect reinstituting discriminatory laws. The next day, Texas and the other states previously covered by the Voting Rights Act began to implement discriminatory voting laws.

Even though Section 5 is no longer in effect, minority plaintiffs and the Justice Department have brought suit against the voter ID bill. Texas has lost the battle to uphold voter ID three times straight. The 5th U.S. Circuit Court of Appeals ordered Texas to substantially modify the discriminatory parts of the voter ID bill. However, Texas continues to change the rules and fight the ruling — the state wants to take the battle to the Supreme Court.

After the demise of the Voting Rights Act protections, Texas fought in federal court in San Antonio to preserve its discriminatory election districts for Congress and the Texas House. The federal court has not yet made its final decision. It could decide not only that Texas discriminated but also that Texas must again be subject to preclearance in major voting changes.

North Carolina and Ohio are joining Texas in passing and vigorously defending changes in voting rules that have been proven to discriminate against minority voters. The 4th U.S. Circuit Court of Appeals held that the North Carolina Legislature targeted “African Americans with almost surgical precision” and “impose(d) cures for problems that did not exist.”

That is an accurate description of so much of Texas’ voting history.

Clearly many states, including Texas, have reverted to their old ways of playing whack-a-mole with minority voting rights. Every time one discriminatory system is struck down, the states implement another.

The pattern must be stopped.

I hope that the Texas and North Carolina courts use their statutory powers to require these states again to preclear voting changes. Alternatively, Congress could pass a new Voting Rights Act to meet the objections expressed by the U.S. Supreme Court.

The preclearance system actually reduces litigation by deciding almost all issues administratively and more quickly than the court system.

Preclearance also has a very strong prophylactic effect. States, counties, cities, school districts and other governmental bodies understand they must show new voting rules do not discriminate. This leads to fewer discriminatory changes.

And, ultimately, this understanding by governments leads to a more equitable and fair election systems at all levels.

Stop the pattern of discrimination. That would be good for Texas.


Al Kauffman is a law professor at St. Mary’s University School of Law in San Antonio. He has litigated and taught issues of affirmative action and other civil rights issues for 40 years.

[Photo courtesy of Sanders.Senate.gov]

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