By Mike Norman
mnorman@star-telegram.com
Texas Attorney General Greg Abbott had pretty much the same reaction this week when a pair of three-judge panels in Washington, D.C., ruled against the state in key voting rights cases.
His office "will immediately take steps to appeal this flawed decision to the U.S. Supreme Court," he said Tuesday when the federal court struck down redistricting maps drawn by the Legislature last year.
And on Thursday, when the court tossed out the Voter ID law passed at the start of the 2011 legislative session: "The state will appeal this decision to the U.S. Supreme Court, where we are confident we will prevail."
Easier said than done, of course. There's no guarantee that the Supreme Court will take either case. Neither presents issues that break a lot of new legal ground, and the D.C. judges were unanimous in most of their findings.
Still, there's an element of both cases that does have important constitutional implications and is ripe for Supreme Court analysis. Both arose under Section 5 of the federal Voting Rights Act, which requires certain states, including Texas, to get approval from the Justice Department or the U.S. District Court in Washington before implementing any changes, however small, in voting procedures.
Abbott and leaders from several other states covered by Section 5 want the Supreme Court to declare it unconstitutional, to say that although it once served a noble purpose it is no longer justified.
But the particulars of the Texas cases make neither of them well-suited to serve as the basis for that fight. And, in fact, a case from Shelby County, Ala., already has been offered as that test case. Texas and five other states filed a brief Aug. 23 asking the Supreme Court to take the Alabama case.
Congress passed the Voting Rights Act in 1965 and renewed it in 1970, 1975, 1982 and 2006.
Section 5's "preclearance" requirement, Supreme Court Justice John Paul Stevens wrote in a 1978 case, is "one of the most extraordinary remedial provisions of an Act noted for its broad remedies" and a "substantial departure ... from ordinary concepts of our federal system; its encroachment on state sovereignty is significant and undeniable."
That "departure" is from the accepted rule that all states are treated equally under federal law. That's not the case under Section 5, where the preclearance requirement applies only to certain states that, at least at one time, employed devices or tests that detracted from the voting rights of racial, ethnic or language minorities.
The Voting Rights Act survived a Supreme Court challenge in 1966 because of what the court described as "unremitting and ingenious defiance of the Constitution" through devices such as literacy tests, requirements that voters sign their ballots and poll taxes that disproportionately affected minority citizens.
Texas has been covered by Section 5 since the 1975 revision, which brought non-English-speaking people under the protection of the act.
More recently, particularly in a 2009 case involving an Austin utility district, the Supreme Court has viewed Section 5 more cautiously.
In the Austin case, the justices cautioned against laws that are too broad, saying that Section 5's preclearance requirement "imposes current burdens and must be justified by current needs."In the redistricting ruling this week, the judges found that the Legislature acted with "discriminatory purpose" when it drew Senate District 10 and split minorities in Fort Worth. Sen. Wendy Davis represents that district, which has since been restored to its original lines for the November election.
And the judges in the Voter ID case said that new law had a discriminatory effect on minorities.
That means both cases present "current needs" that justify intervention.
Mike Norman is editorial director of the Star-Telegram/Arlington and Northeast Tarrant County.817-390-7830Twitter: @mnorman9
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