They’re a mighty busy bunch at the OAG these days.
The Texas attorney general’s office today filed suit against U.S. Attorney General Eric Holder and the Department of Justice to have the state’s controversial voter ID law implemented without further delay.
The law, Senate Bill 14 by state Sen. Troy Fraser, R-Horseshoe Bay, was scheduled to take effect Jan. 1. It requires that voters show a picture ID before casting a ballot. It has been tied up at the Justice Department since July. Under Section 5 of the federal Voting Rights Act, the department reserves the right to review laws that affect voter participation before they are enacted.
“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Texas Attorney General Greg Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”
Abbott’s office said that if the department grants the state’s request for preclearance, it would dismiss the suit.
You can see a copy of the complaint here. As Michael Li notes, the suit “does not challenge the constitutionality of section 5 on a facial basis but does extensively argue that failing to preclear Texas’ voter ID law would raise constitutional concerns, including possible violations of the 10th amendment and the state’s right to equal sovereignty”. The right of any individual to cast a vote is apparently not the State of Texas’ concern.
Rick Hasen delves more deeply into what the state is seeking.
In a recent Slate piece, I explained how South Carolina might file suit—and expedite it to the Supreme Court—arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty. (In 2009 the Court strongly hinted that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement. Congress did not act, but needs to.) As some evidence South Carolina is considering going down that road, they’ve hired Supreme Court ace lawyer Paul Clement.
Today’s filing by Texas takes a slightly different tack. It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act. First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting. Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem. The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.
The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts. South Carolina may offer the Court the former, and Texas the latter.
You have to wonder how history will judge some of the things we do this year, and the people who do them.
Anyway. As we know, the Justice Department has been asking the state for data about how this law will affect minority voters, and it’s only in the last couple of weeks that the state has sort of fulfilled those requests. The DOJ refused to preclear a new voter ID law in South Carolina on the grounds that it was discriminatory, with AG Abbott expressing at that time the opinion that Texas’ law was headed for a similar fate. We’ll see what the DC court makes of this. For what it’s worth, they so far have not shown any inclination in the redistricting preclearance lawsuit to be more lenient on the state than Justice would have been. Postcards has more, Texas Redistricting has a response to Abbott from MALC Chair Trey Martinez-Fischer, and a statement from Sen. Rodney Ellis is here.