Shelby’s Aftershocks

July 3, 2013
Guest Post

by Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School. Schwinn is also Co-Editor, The Constitutional Law Prof Blog.

The Supreme Court and the State of Texas wasted little time last week in revealing the full implications of the Court’s ruling in Shelby County v. Holder. Between the Court’s rulings and the State’s reactions, we will soon see fundamental changes to Texas’s election law that will almost surely have a retrogressive effect on the right to vote of racial minorities in that state.

We all know that last week the Court in Shelby County gutted the preclearance provision of the Voting Rights Act by striking the coverage formula for preclearance. The ruling lifted the preclearance requirement for all previously covered jurisdictions, including Texas, and rendered preclearance dormant unless and until Congress can rewrite a coverage formula. 

But less widely known is this: Just two days after the Court issued the Shelby County ruling, it issued orders vacating two federal court decisions denying preclearance to two proposed changes to Texas’s election law -- a new and stringent voter-ID requirement, and redistricting maps for Texas’s congressional and state legislative districts.  That same day, the Texas Attorney General announced that those proposed changes would go into effect -- that after Shelby County these changes “need not . . . go through the lengthy and costly federal preclearance process because of Tuesday’s ruling by the U.S. Supreme Court . . . .” 

But the three-judge courts’ rulings on those changes illustrate the retrogressive effects of the changes. That is, those cases show exactly how the changes will almost surely impact the voting rights of racial minorities in the state, and that enacting the changes, as the Texas AG ordered, will almost surely have a retrogressive effect on the right to vote.  At the same time, the cases also illustrate exactly why we need preclearance.

In the first case, State of Texas v. Holder, a three-judge panel of the United States District Court for the District of Columbia denied preclearance to Texas’s stringent voter-ID law. (The Attorney General had previously denied preclearance.) The new law, SB 14, required in-person voters to show one of five forms of government-issued photo identification at the polls, or to obtain a photographic “election identification certificate,” or EIC, for use at the polls.  But the EIC itself required strict proof of identification, the cheapest form, a birth certificate, costing $22.  Moreover, in order to obtain an EIC Texans had to travel to a Department of Public Safety, or DPS, office, in a state where 81 counties (nearly one-third of the state’s total) had no DPS office and DPS offices in other counties had restrictive hours.  In a large state, with large rural areas, and little, if any, rural public transportation, transportation issues alone could bar a Texan from obtaining an EIC.

The court held that this scheme would likely have a retrogressive effect on Hispanic and Black voters:

This conclusion flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty.

The court distinguished Georgia’s voter-ID law, which the Attorney General previously precleared, and Indiana’s voter-ID law, which the Supreme Court upheld in Crawford v. Marion County. The court said that Georgia’s voter-ID law was less stringent, without the same likely retrogressive effects, and that plaintiffs challenged Indiana’s voter-ID law on different grounds. 

The upshot is that the court issued a modest ruling halting only the most rigid voter-ID requirement. Now, in the wake of Shelby County, that requirement will become law.

In the second case, State of Texas v. United States, the three-judge district court denied preclearance to Texas’s redistricting plans for its congressional districts and state legislative districts.  (Notably, the court denied preclearance for the redistricting plan for the state senate, even though the United States did not oppose preclearance.) Even after Texas dragged its feet and effectively gamed the litigation, the court ruled that the plans would have a retrogressive effect and, importantly, were enacted with a discriminatory purpose. Now, after Shelby County, those plans will go into place. 

These cases show that the new voter-ID law and the congressional and state legislative maps will have a retrogressive effect on the right to vote of racial minorities in Texas. But they also show why we need preclearance.  When these laws go into effect, the resulting elections will only further entrench the views that led to these laws’ enactment in the first place. This, in turn, will only further alienate and disenfranchise racial minority voters in Texas. And the cycle will continue.

Sure, these laws are still subject to individual litigation under Section 2 of the VRA (among other causes of action).  But as Congress found in reauthorizing the VRA in 2006, this individual litigation will never catch up to the clever and devious ways that Texas and other jurisdictions can infringe upon and dilute the vote of racial minorities. That was the purpose of preclearance -- to backstop individual, case-by-case Section 2 litigation, forcing offending states to justify changes to their election laws before they took effect. Shelby’s immediate aftershocks illustrate just how much we lost when the Court gutted preclearance.