Forty-seven years ago, Democratic President Lyndon Johnson signed the Voting Rights Act of 1965, outlawing the discriminatory election practices employed in much of the South, including his home state of Texas. Now another Texan, Republican Attorney General Greg Abbott, is poised to dismantle a key element of that landmark legislation.
Last week, a panel of federal judges in Washington, D.C., rejected Texas' 2011 voter ID law - one of the strictest in the nation - ruling that it imposed "strict, unforgiving burdens on the poor." Abbott promptly vowed to appeal that decision to the U.S. Supreme Court.
His challenge will likely center around the constitutionality of the Voting Rights Act's Section 5, which requires jurisdictions with discriminatory histories like Texas to obtain permission from the federal government before making any changes to their election laws.
Abbott believes the so-called "preclearance provision" subjects Texas to a burden other states don't have to endure.
"There's no reason why Texas should be discriminated against," he said in a recent interview.
Abbott also argues that discrimination exists in places that aren't subject to Section 5, like Philadelphia, where members of the New Black Panther Party were accused of wielding batons to intimidate voters in 2008.
Whether Texas will be the first state to plead its case before the Supreme Court is uncertain, however. Shelby County, Alabama, and Kinston, North Carolina, have already submitted Section 5 appeals. And South Carolina and Florida could soon do the same.
But whichever state reaches the high court first, it is likely to have a sympathetic audience. A majority of the justices appear to have the same view of the issue as Abbott. In a January hearing on another tumultuous Texas legal matter, the state's political redistricting, Justice Anthony Kennedy said "Texas is at a tremendous disadvantage" because "Section 5 applies only to some states and not others." And in a decision three years ago, Chief Justice John Roberts wrote that things had changed in the South.
"Voter turnout and registration rates now approach parity," he wrote. "Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels."
Other conservatives on the court, including Antonin Scalia, Clarence Thomas and Samuel Alito, have also signaled their opposition to Section 5.
Ian Vandewalker of the Brennan Center for Justice, which advocates for voting rights, said a ruling striking down Section 5 would do more than impose voter-ID burdens on minorities, who are more likely than whites to lack forms of ID considered valid under the laws.
"The greater effect would be all these jurisdictions would be able to change their laws in innumerable ways that would discriminate against minorities' ability to participate in the electoral process," he said.
Section 5 places the burden on the state or other jurisdiction to prove to the U.S. Department of Justice it is not discriminating and not the other way around. If struck down, the DOJ "would lose a valuable tool to protect minority access to the ballot," Vandewalker said.
But Abbott said Texas and the other Section 5 states shouldn't be presumed guilty of discrimination. And even without the preclearance process, lawsuits could still be filed against election laws, he said, as just occurred in Pennsylvania, where groups challenged the state's new voter ID law.
"All the protections of the Voting Rights Act would still exist," he said.
(AUSTIN AMERICAN-STATESMAN, DALLAS MORNING NEWS, PITTSBURGH POST-GAZETTE)
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