Texas didn’t discriminate against minority voters. It was only because they were Democrats. And even if it did, the racial discrimination Texas engaged in is nowhere near as bad as the stuff that happened in the 1960s.
These are some of the arguments the state of Texas is making in an attempt to stave off federal supervision of its election laws. In late July, citing the state’s recent history of discrimination, the Justice Department asked a federal court to place the entire state back under “preclearance.” That means the state would have to submit its election law changes in advance to the Justice Department, which would ensure Texas wasn’t disenfranchising voters on the basis of race.
This week, Texas submitted a brief arguing that placing the state back under preclearance would be an “extreme” encroachment on state sovereignty and denying that they ever discriminated against minority voters in the state.
“I don’t think it’s going to work, frankly. The mere desire to achieve partisan advantage does not give Texas a free hand to engage in racial discrimination,” says Brenda Wright, a voting law expert with the liberal think tank Demos. “If the only way you can protect white incumbents is by diluting the voting strength of Hispanic citizens, you are engaging in intentional racial discrimination, and the courts will see that.” [...]
Since being placed under preclearance, Texas has amassed a rather poor record. According to a 2006 study by the Mexican American Legal Defense and Education Fund, the state was second only to Mississippi in the number of election law changes that were blocked by the feds, and more voting rights lawsuits under section 2 of the Voting Rights Act were brought in Texas than any other state.
“If any states’ history of voting discrimination would justify preclearance as a judicial remedy, certainly Texas is one of those states,” says Wright.
Texas’ argument however, has larger implications, because it suggests only the conditions that existed in 1965 could justify close federal supervision of state election practices.
“They’re arguing that the bail in remedy is no longer permissible, and I think that is a stretch,” says Hasen. “It’s an unfair reading of the [Supreme Court's recent] decision.” Wright agrees. “It’s one thing to say that Congress failed to update the [preclearance] coverage formula, but it’s something very different to say there’s no record that would justify preclearance other than the record that existed in 1965.”
