Many cheered when the Obama Administration intervened and refused to pre-clear Texas’ draconian voter ID legislation. And given the risk to disenfranchisement of particularly minority voters, it was the right thing to do. But a pernicious by-product of this has now been realized: Texas, in its response, will seek to invalidate Section 5 of the Voting Rights Act entirely. Here’s Rick Hasen from Election Law Blog:
Texas filed an amended complaint today [UPDATE, actually Tuesday] in its action to overcome the US Department of Justice’s objection to its voter identification law. The complaint now says that the Voting Rights Act section 5, as amended in 2006, “exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment.”
This is a very big deal. I had expected South Carolina to do this in its own challenge to DOJ denial of preclearance of its voter id law. For some reason, South Carolina did not do so; nor did Texas in its initial complaint.
But the bullet can no longer be dodged: conservatives are going straight after the Voting Rights Act. Section 5 allows the Justice Department pre-clearance authority over several states, mostly Southern, with a history of voter discrimination. Texas will argue that the time has passed for such fears, and anyway, it violates state sovereignty to have DoJ meddling in its affairs of how it conducts elections.
Hasen explained in Slate why this would be so risky, and how it’s likely to be fast-tracked to a conservative Supreme Court. Lower courts have started to engage on this question, but the Texas voter ID law allows the perfect opportunity.
Hasen explains that if the court invalidates Section 5 for this voter ID law, it would basically end all jurisdiction from DoJ over this handful of states on voter issues. You can bet that opportunity would not be missed by Republican states looking to cement their electoral advantage, and essentially write it into their laws.
It’s hard to see how the Court could rule on this between now and June, but Texas plans to use its voter ID law this election, so something would have to give. So much would ride on that one ruling.