TEXAS has not had a good time of it this month in federal court. Four times in a fortnight, a federal judge has determined that the state legislature discriminated against black and Hispanic voters by drawing up electoral maps or voter-ID requirements that—by design, effect or both—reduce minority influence in the voting booth.
Ken Paxton, Texas’s defiant attorney-general, promises to appeal what he calls “outrageous” rulings. But the string of defeats tells a tale of race-tinged Republican electoral hardball that may earn America’s second-largest state a stint in the dog-house. The Voting Rights Act (VRA) is far from what it once was, thanks to the Supreme Court’s 2013 ruling in Shelby County v Holder gutting the law’s requirement that certain states get approval from the Department of Justice before changing electoral rules. But the VRA’s section 3(c) survives, providing that states caught discriminating intentionally could be put back under a “preclearance” requirement—and Texas’s repeated shenanigans seem to fit that bill.
Texas’s first electoral sin is cartographic. On August 15th, a three-judge panel in San Antonio ruled that two congressional districts encompassing the cities of Corpus Christi and Austin were drawn to minimise minority voting power, violating both the VRA and the Fourteenth Amendment’s equal-protection guarantee. Hispanics were “intentionally deprived of their opportunity to elect a candidate of their choice” in District 27, the panel wrote, and District 35 showed signs of an “impermissible racial gerrymander”—line-drawing based predominantly on racial considerations. The court rejected the state’s contention that its gerrymander was merely partisan, not racial.
On August 24th Texas’s state legislative lines came under fire when the same court erased several statehouse districts. Two districts in Dallas were “packed” to include large numbers of Hispanic voters, diluting their clout in adjoining districts, while others were formed with the express purpose of “cracking” Hispanic voter strength across several districts. The judges found smoking guns in the legislators’ own words: “as naked a confession as there can be to moving voters into and out of districts purely on the basis of race”. With time rather short before the 2018 state and federal elections, and the Texas legislature out on summer recess, the state is set to appeal the district court rulings. The Supreme Court will probably be the forum of last resort to decide whether Texas’s district boundaries need to be quickly redrafted to satisfy the law and the constitution.
It would be a surprise if the nine justices are not eventually called upon, too, to resolve a long-simmering dispute over Texas’s highly restrictive voter-ID requirements. The law, passed in 2011, was first struck down in October 2014, when the district court said its provisions—which allowed gun permits, but not student IDs or out-of-state driver’s licences—amounted to “a poll tax” potentially disenfranchising up to 600,000 voters. When the Supreme Court permitted the law to take effect for that autumn’s election, Justice Ruth Bader Ginsburg wrote a strident dissent. “A sharply disproportionate percentage of those [disenfranchised] voters are African-American or Hispanic”, she noted. “[T]he Texas legislature and governor had an evident incentive to ‘gain partisan advantage by suppressing’ the ‘votes of African-Americans and Latinos.’”
Justice Ginsburg’s take on Senate Bill 14 was shared by a majority of the conservative Fifth District Court of Appeals when, in July 2016, it rejected Texas’s voter-ID rules. The appellate court found clear evidence that the law had a discriminatory impact on blacks and Hispanics, groups less likely to hold the required forms of ID. The “disproportionate effect of the law on minorities”, the court held, was not lost on its “drafters and proponents”. But the Fifth Circuit sent the question of discriminatory purpose back to the district court for another look.
On August 23rd, the lower court rejected the legislature’s attempt to correct the original bill’s defects, finding more than a whiff of bias lingering over the replacement. In a unanimous ruling, Judge Nelva Gonzales Ramos said Senate Bill 5—the patched-up version of Senate Bill 14—“fall[s] far short of mitigating the discriminatory provisions” of its predecessor. The bill provides no funds for voter education, pointlessly explains that “passports” (an acceptable form of ID) includes “passport cards” and failed to “meaningfully expand the types of photo IDs that can qualify”. Most damningly, the June 2017 law gave minority voters a new reason to stay away from the polls. As a workaround for those who lack required forms of ID, Senate Bill 5 permitted voters to fill out a form explaining themselves—under penalty of perjury. “Requiring a voter to address more issues than necessary”, Judge Ramos wrote, “and enhancing that threat by making the crime a state jail felony”, are not the moves of a legislature seeking to welcome more voters to the polls. To the contrary, they “appear to be efforts at voter intimidation”.
Federal courts have repeatedly caught Texas behaving badly. Soon Judge Ramos will preside over a hearing asking whether the racially charged election strategies of the state’s legislature and governor are reason enough to subject Texas to up to ten years of federal oversight under the VRA. If she does put the Lone Star state under the watch of the Department of Justice (DoJ)—and the Supreme Court does not reverse that move—the immediate effects will be muted. Under Jeff Sessions, Donald Trump’s attorney-general, the DoJ does not seem especially keen to police racial injustice in America’s electoral system. But one day another president, and a new attorney-general, could change course once again.