“We Only Discriminate For Partisan Reasons”: Texas Struggles To Defend Discriminatory Voting Policies
It’s been about three weeks since the Justice Department, relying on what’s left of the Voting Rights Act, went after voter-discrimination policies in Texas. The U.S. Supreme Court may have severely damaged the VRA, but the Justice Department nevertheless argued that when “intentional voting discrimination” is found, changes to voting rights cannot be permitted to continue.
This week, as Adam Serwer reported, Texas submitted a brief presenting their defense.
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.
The arguments from Gov. Rick Perry’s (R) administration are pretty amazing, especially considering federal courts already found Texas’ election policies discriminatory as recently as two years ago, before the Supreme Court intervened.
As Kevin Drum explained, Texas’ first argument, as pushed by state Attorney General Greg Abbott, “is that, sure, Texas has tried to discriminate as recently as 2011, but their efforts were overturned by a court. So that means there are no current violations, and thus no reason to grant any kind of ‘equitable relief.'”
The second argument is the half-glass-full tack. As Serwer put it, “[T]he state claims, even if Texas did discriminate, and the state stresses that it did not, it was nothing as bad as ‘the ‘pervasive,’ ‘flagrant,’ ‘widespread,’ and ‘rampant’ discrimination that originally justified preclearance in 1965.’ So as long as Texas skies aren’t alight with flames from burning crosses, what’s the big whoop?”
But it’s the third argument that’s truly amazing.
From the brief filed by the state:
DOJ’s accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats….The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.
Got that? Texas wasn’t trying to discriminate against racial and ethnic minorities; Texas was simply trying to discriminate against racial and ethnic minorities who vote for Democrats.
In other words, Texas’ defense is that state policymakers were trying to crush the Democratic vote, and this led to inadvertent discrimination against African Americans and Latinos. As such, the argument goes, Texas was motivated by crass partisanship, and not racism, so the discrimination doesn’t really count.
Any chance this might be persuasive in court? Brenda Wright, a voting law expert with the liberal think tank Demos, told Serwer, “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. 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.”
By: Steve Benen, The Maddow Blog, August 13, 2013
“Fighting Back On Voting Rights”: First The Struggle Will Begin In Texas, Then The NC Omnibus Voter Suppression Act of 2013
Attorney General Eric Holder has opened what will be an epic battle over whether our country will remain committed to equal rights at the ballot box. In a display of egregious judicial activism in late June, the conservative majority on the Supreme Court gutted the Voting Rights Act. Holder made clear last week he intends to fight back.
The struggle will begin in Texas, but it won’t end there. “We cannot allow the slow unraveling of the progress that so many, throughout history, have sacrificed so much to achieve,” Holder told the National Urban League’s annual conference.
He wasn’t exaggerating the stakes. From the moment the Supreme Court threw out Section 4 of the act, which subjected the voting laws in states and jurisdictions with a history of discrimination to Justice Department scrutiny, conservative legislators in those places gleefully signaled their intention to pass laws to make it harder to vote. In addition, Texas re-imposed a redistricting map that a federal court had already ruled was discriminatory.
These hasty moves were unseemly but entirely predictable, proving that Chief Justice John Roberts’ opinion in the case will become a Magna Carta for voter suppression. Without having to worry about “preclearance” from the Justice Department, legislators can go about their business of making it more difficult for voters who would throw them out of office to reach the polls — and of drawing racially gerrymandered districts that prolong their tenure. Justice Ruth Bader Ginsburg understood a logic here that escaped Roberts. “A governing political coalition,” she wrote in her dissent, “has an incentive to prevent changes in the existing balance of voting power.”
This in turn means that when a political party fares badly with minority voters, it will try to turn them away from the polling booths. That’s what segregationist Southern Democrats did in the past. Many Republican-controlled legislatures are doing it now.
Holder announced he was using Section 3, a different part of the Voting Rights Act that was left standing, to ask a federal court to re-subject Texas to preclearance. It is a less efficient way to achieve what the pre-gutted act allowed automatically, but it is the best that can be done for now. It would be better still if Congress reinstated a revised version of Section 4. In the meantime, the hope is to limit the damage of the high court’s folly — and perhaps also give other states pause before they rush into new discriminatory schemes.
“This is the department’s first action to protect voting rights following the [Supreme Court] decision, but it will not be our last,” Holder declared. His department is likely to move this week against the Texas voter-identification law, and to go to court eventually against other states that pass comparable statutes.
To get a sense of how bad these laws are, consider the bill Republicans rushed through both houses of North Carolina’s Legislature that should be called the Omnibus Voter Suppression Act of 2013. It reads like a parody written for Stephen Colbert’s show with its cornucopia of provisions that would make it as hard as possible for African-Americans, Latinos and young people to vote.
As the Charlotte Observer reported, it shortens the early-voting period, eliminates the opportunity to register and vote on the same day during that time, and ends pre-registration for teenagers 16 to 17. The bill also prevents counties from extending voting hours when lines are long — which they will be with the cutback on early voting days. It not only requires photo identification, but also narrows the list of what’s acceptable, eliminating college IDs, for example.
Oh, yes, and remember the old civic tradition of using all avenues to encourage people to register to vote, a favorite cause of that famously revolutionary group, the League of Women Voters? This bill would ban paid voter registration drives.
Throughout the world, our country proclaims its commitment to equal rights and broad democratic participation. We seem to be abandoning those ideals at home. You have to wonder what this will do to our witness on behalf of democracy.
It won’t shock you to learn that after Holder made his announcement, Gov. Rick Perry of Texas condemned the Obama administration for showing an “utter contempt for our country’s system of checks and balances.”
Actually, what Holder’s move shows is an utter contempt for efforts to deprive our fellow Americans of their right to cast a meaningful ballot. It is a contempt that all of us should feel.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, July 29, 2013
“Whether The Pretense Makes Sense Is Irrelevant”: The War On Voting In A Post Voting Rights Act World Just Got Worse
In North Carolina, thanks to Republican gains in the 2010 state elections, the congressional district lines already drawn in such a comically gerrymandered way, the state’s delegation bears little resemblance to the actual wishes of voters. In 2012, for example, a majority of North Carolinians voted for Democratic congressional candidates, and yet, only 4 of the state’s 13 members of the U.S. House are Democrats.
But as the Los Angeles Times reports today, that’s apparently not quite good enough for GOP state policymakers. In a story Rachel has covered on the show, now that the district lines have been gerrymandered to ensure a Republican advantage regardless of voters’ wishes, the next step is to restrict voters’ access to their own democracy.
The GOP chairman of the state Senate rules committee, Sen. Tom Apodaca, said he would move quickly to pass a voter ID law that Republicans say would bolster the integrity of the balloting process. GOP leaders also began engineering an end to the state’s early voting, Sunday voting and same-day registration provisions, all popular with black voters. Civil rights groups say the moves are designed to restrict poll access by blacks, who vote reliably Democratic.
Up until about a week ago, this would ordinarily be the point at which voting-rights advocates, civil rights activists, and anyone concerned with voter access and election fairness would say, “Whew, it’s a good thing the Voting Rights Act still exists. There’s no way these North Carolina’s measures will pass muster.”
But all of that changed rather abruptly when five justices on the U.S. Supreme Court gutting the Voting Rights Act and gave GOP policymakers in North Carolina and elsewhere a green light to start restricting Americans’ access to the ballot box. It is open season on voting rights and Republicans throughout the South are seizing the opportunity.
Originally, GOP lawmakers in North Carolina held back on pursuing voter-ID laws, knowing how racially discriminatory they are. But thanks to the Supreme Court, they no longer care.
What’s especially interesting to me as how thin the pretense is. At least on the surface, Republicans say they need to impose the harshest voting restrictions since Jim Crow to prevent “voter fraud.” In reality, such fraud is practically non-existent, but it nevertheless serves as a convenient pretense. But how does ending Sunday voting prevent fraud? Why eliminate early-voting opportunities and make longer voting lines, neither of which relate to fraud at all?
Of course, questions like these only matter if there’s a real debate, and with Republicans controlling North Carolina’s legislature and governor’s office, whether the pretense makes sense or not is apparently irrelevant.
By: Steve Benen, The Maddow Blog, July 2, 2013
“Trapped In A Conservative Box”: The Cost Of The GOP’s Redistricting Wins Presents A Real Problem
Sometimes in politics you can lose by winning. Witness the problems the Republican Party is experiencing trying to govern with a majority that is widely believed to be unshakeable in the near future thanks to the redistricting job GOP state legislators did after the 2010 census.
Politico’s Alex Isenstadt has a report today suggesting that the party’s success has trapped Republicans in a conservative box, “narrowing the party’s appeal at a time when some GOP leaders say its future rests on the opposite happening.”
This isn’t necessarily a new thought. As I wrote back in early March:
In a sense the GOP’s success in the last round of redistricting – creating what the Cook Political Report sees as over 200 safe GOP districts – is proving Pyrrhic. If you’re a Republican member of Congress your greatest existential threat comes from primary challenges, so that’s what shapes your agenda, even if it comes at the cost of national political viability.
I was writing then about the GOP’s doubling down on the same policy agenda that voters rejected last November. That hasn’t changed in the intervening months. In fact, if you watched most House Republicans (and more than a few senators and other elected officials) you would not know that the party lost last year on multiple fronts: The presidential race wasn’t close and Obama became the first candidate since Dwight Eisenhower to crack 51 percent two elections in a row; Democrats picked up seats in both chambers of Congress and won more House votes than did the GOP, though Republicans held the lower chamber because, in large part, of their redistricting success. Meanwhile, the national GOP brand remains terrible.
Isenstadt is writing about “recurring drama within the House Republican Conference – from the surprise meltdown on the farm bill to the looming showdown over immigration reform,” but it’s the same basic problem: Conservatives unchecked by practical considerations such as what will help the party nationally.
The Politico piece has a couple of telling nuggets:
Of the 234 House Republicans, just four now represent districts that favor Democrats, according to data compiled by The Cook Political Report. That’s down from the 22 Republicans who resided in Democratic-friendly seats following the 2010 midterms, prior to the line-drawing.
They’re also serving districts that are increasingly white. After redistricting and the 2012 election, according to The Cook Political Report, the average Republican congressional district went from 73 percent white to 75 percent white. And even as Hispanics have emerged as America’s fastest-growing demographic group, only about one-tenth of Republicans represent districts where the Latino population is 25 percent or higher.
The piece also has the obligatory conservative quote about how what the party really needs is not to broaden its appeal but more starkly state its case. But this proceeds from an incorrect assumption of conservatism’s nationwide appeal. I am always reminded of this passage from Ryan Lizza’s Eric Cantor profile a few months ago. Lizza spoke with Georgia Republican Rep. Tom Price, a conservative leader:
He explained how surprised he was when one of his colleagues from a Northern state told him that he favored a tax increase on millionaires. “It hit me that what he was hearing when he’s going home to a Republican district in a blue state is completely different than what I’m hearing when I go home to a Republican district in a red state,” he said. “My folks are livid about this stuff. His folks clearly weren’t. And so we weren’t even starting from the same premise.”
Price is no tea party freshman just finding his way around the Congress. He’s the vice chairman of the House Budget Committee and has been in Congress for eight years. And yet it only just recently occurred to him that not every district holds the same political beliefs as his. That’s a real problem for Republicans and it’s one their redistricting success is only exacerbating.
By: Robert Schlesinger, U. S. News and World Report, July 1, 2013
“The Initiative Process Just Got A Whole Lot Weaker”: How The Supreme Court Crippled Direct Democracy
Gay marriage advocates won a big dual victory in two cases decided by the Supreme Court on Wednesday. But one of the two decisions, the ruling that effectively struck down California’s Proposition 8, may have a very significant impact on governing that’s separate from the gay-marriage issue.
The Prop 8 ruling may have dealt a body blow to the ideal of direct democracy.
California voters approved Prop 8 in 2008. A district court decision later overturned the Prop. 8 law, and California’s elected officials refused to appeal. So the supporters of Proposition 8 sued instead. They won their case over whether they had the right to sue in the California Supreme Court. The U.S. Supreme Court saw things much differently. The Supreme Court, in a 5-4 decision, held that the plaintiffs lacked standing. The court ignored the underlying issue of gay marriage, and instead held that the anti-gay-marriage advocates couldn’t show they were harmed by the state government’s decision to ignore the initiative. The decision quotes an older Supreme Court ruling noting that the doctrine of standing “serves to prevent the judicial process from being used to usurp the powers of the political branches.” But usurping the power of the political branches is exactly what the initiative is specifically designed to do.
The entire reason for initiatives is to bypass the office-holders in government. Former California Gov. Hiram Johnson, who was responsible for the state’s passage of the direct democracy provisions, said that the initiative would “give to the electorate the power of action when desired.” Frequently, the laws passed by initiative are unpopular or politically unpalatable with elected officials. Consider, for instance, California’s popularly approved initiative that stripped the power of redistricting from the state legislature.
The Supreme Court’s decision may mean that initiatives are now at the mercy of elected officials. Imagine a popularly approved referendum that is challenged and struck down in court. The government can just elect not to appeal — and thanks to the Supreme Court, no private citizens can step in to fill this void.
The track record of elected officials acting against their perceived self-interest is not good. You don’t just have to look at the sorry state of campaign finance laws, which frequently assist the incumbent, or in the use of redistricting to gerrymander impregnable districts. There’s also the initiative’s direct democracy cousin, the recall. In the past two years, we have seen numerous instances of elected officials across the country in local jurisdictions working to subvert the use of the recall against themselves or their colleagues. The officials may refuse to schedule a vote. In other cases, they sue under very questionable legal arguments to stop the recall from taking place. In one instance, a city council tried to kill the adoption of a recall law, only to be overturned by a charter commission and the voters.
Elected officials already have a great weapon. Supporters of recalls or initiatives have to pay legal fees out of their own pocket to force the elected officials to act. Elected officials usually have the luxury of defending the sometimes questionable decisions using government funds. But even that advantage pales in comparison to strength they’ve just been given by the Supreme Court.
Initiatives are frequently divisive and controversial, as Prop 8 shows. But the voters and officials of the 27 states with the initiative or popular referendum process in place are the ones who decided to grant people this power. They adopted these laws specifically to provide a way to bypass the governor and legislature and enact politically unpalatable laws. The Supreme Court may have just effectively shut that route down.
By: Joshua Spivak, The Week, June 28, 2013
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