Voting rights provision should return to Texas

With record-breaking early voting turnout, and a tremendous upswing in the number of Latino Texans registered to vote, it might seem counterintuitive to argue that Texas still is in need of U.S. Department of Justice civil rights monitoring in election matters. But Texas unfortunately 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 re-institute the discriminatory policies. Because of this historical pattern, Congress in 1975 applied Section 5 of the Voting Rights Act to Texas.

Section 5 of the federal Voting Rights Act required states with a history and pattern of discrimination against minorities in voting to have changes in their election systems precleared by the U.S. Department of Justice or a federal court before the change could be implemented. Texas deserved to be covered by this preclearance requirement when Section 5 was applied to Texas in 1975-2013. Even though the U.S. Supreme Court overruled Section 5 in 2013, Texas deserves to be covered by the same provision now as it, along with many other states, is setting the same discriminatory patterns again.

Some historical and more recent examples demonstrate why Texas deserves to have preclearance re-imposed.

The U.S. Supreme Court had to declare Texas laws discriminatory in 1927, 1932 and 1944 to open the election primary process to African Americans.

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 in 1973, the Supreme Court declared 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 and continuous history of discrimination, combined with the 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. The first Voting Rights Act cases in Texas are good examples why the Voting Rights Act was so needed here.

After the Raza Unida Party won 6 percent of the vote for Texas governor in 1972, Texas changed its primary financing system in 1973 to prevent state funding for Raza Unida primaries. 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 these laws were not discriminatory and, based on the Voting Rights Act, federal courts enjoined those laws.

Both Republican and Democratic Justice Departments enforced the Voting Rights Act in Texas from 1975 to 2013, and Texas had more “objections” to its discriminatory plans than any other state during this period.

In 2011, Texas passed discriminatory redistricting plans for the U.S. Senate and U.S. House, and one of the most restrictive voter ID bills ever passed. Texas could not show that these plans did not discriminate, and Section 5 led to their rejection.

Tragically, the Supreme Court declared the preclearance provisions unconstitutional in June 2013. The next day, Texas and the other states previously covered by the Voting Rights Act began to implement their existing 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 consecutive times.

Texas continues to fight in federal court in San Antonio to preserve its discriminatory election districts for Congress and the Texas House. A San Antonio federal court could decide not only that Texas discriminated, but also that Texas must again be subject to preclearance.

The Texas court should use its statutory powers to require Texas again to preclear voting changes. Alternatively, Congress could pass a new Voting Rights Act to meet the specific objections expressed by the U.S. Supreme Court.

The U.S. Fourth Court of Appeals held this year that North Carolina’s new voting laws “target[ed] 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.

The preclearance system actually reduces litigation by reviewing voting 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 that any new voting rule does not discriminate. This leads to many 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.

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