Race and politics are at the center of a major case with Texas implications that’s scheduled to be heard Wednesday by the U.S. Supreme Court.
Although it originated in north-central Alabama, the case of Shelby County v. Holder holds potentially profound consequences for politics and civil rights in Texas, a state where minority groups taken together now outnumber whites.
The issue before the high court is the constitutionality of Section 5 of the Voting Rights Act of 1965. It requires just about every southern state in the country — including Texas — and several other governments around the U.S. — such as the one in Shelby County — to get approval from the federal government before making any changes to their election practices. The jurisdictions covered by Section 5 must endure the “preclearance” process through the Justice Department or a federal court in Washington, D.C. because of their histories of discrimination.
Various officials and groups in Texas will be watching closely as the justices ponder the Shelby County case.
Republican Attorney General Greg Abbott, who filed a challenge similar to the one from Shelby County, would like to see the justices declare Section 5 unconstitutional. It gives the federal government too much power, and its provisions “are severe and extraordinary,” Abbott said in a friend of the court brief filed in support of Shelby County.
“There is no justification for continuing to subject Texas to section 5 when the ‘evil [it] is meant to address may no longer be concentrated in the jurisdictions singled out for preclearance,’” Abbott’s brief said.
On other side of the issue are a host of civil rights groups and their Democratic allies in the Legislature, including the Texas NAACP, the Mexican American Legislative Caucus, Mexican American Legal Defense & Educational Fund and the Texas Legislative Black Caucus.
Throwing out Section 5 would have devastating effects on minorities’ right to vote, state Rep. Sylvester Turner, D-Houston and chairman of the Legislative Black Caucus, said at a press conference Monday.
“The attorney general represents all of us, not just some of us,” Turner said. “The reality is that the fabric of Texas is changing, and this is not a time to move back in time.”
As recently as 2011, the federal government found evidence of intentional discrimination in Texas redistricting efforts, said Gary Bledsoe, a lawyer for Texas NAACP.
State Rep. Trey Martinez Fischer, a San Antonio Democrat and chairman of the Mexican American Legislative Caucus, added that Texas is a “textbook” example of why Section 5 is needed.
The Texas Legislature has never gone through the redistricting process without violating Section 5 since it was put under the authority of the section in 1975, Martinez Fischer said. He noted that Texas’ strict voter identification law, passed in 2011, would disenfranchise some Hispanics voters if it were to be enacted. It was denied preclearance, and Abbott has appealed the denial to the Supreme Court. Martinez Fischer also said that 38 percent of 750,000 people without the needed ID in Texas are people with Spanish surnames.
“That tells me that we’re no better off than we were in 1975,” Martinez Fischer said in an interview Monday.
Beyond the arguments about constitutional and civil rights, however, the case also involves some serious partisan interests. After all, one political party in Texas could end up being in a much stronger position than the other after the court rules.
“It’s not a coincidence that there is partisan rancor to both sides of this argument,” said James Henson, a government professor at the University of Texas and director of the, Texas Politics Project.
If Republicans — in firm control of the Legislature — can use their power to draw district lines for Congress, the state Senate and the Texas House without worry of federal interference, then they might be able to hold on to power for a longer period of time, just as Democrats did when they dominated in Texas.
But under the current law, Republicans could have a problem with their methods, said Richard Hasen, an election law expert at the University of California-Irvine School of Law. Actions that are meant to discriminate against Democrats, which would be legal, might also count as discrimination against minorities, he said.
At the same time, Democrats would like to see Section 5 remain in place to possibly ensure that all minorities — who traditionally have voted for Democrats — can easily cast ballots and vote for the candidates of their choice.
Trying to guess what the Supreme Court will do can be an embarrassing exercise. Just think of everyone who incorrectly presumed Chief Justice John Roberts would vote with the conservative justices and declare President Barack Obama’s Affordable Care Act unconstitutional.
But if there is a certainty here, it’s that Roberts is willing to cast a critical eye on race-conscience policies, UT’s Henson said.
Henson pointed to an earlier quote by Roberts, when the chief justice said: “It is a sordid business, this divvying us up by race.”