Texas overreaches again on voting rights in Shelby County case

Posted Wednesday, Feb. 06, 2013  comments  Print Reprints
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campbell To hear state Attorney General Greg Abbott tell it, the U.S. Supreme Court should strike down part of the federal Voting Rights Act in an Alabama case because the Justice Department bullied Texas over its voter ID law.

Never underestimate Abbott's capacity to make a dispute all about his fight for truth, justice and the Texas way.

The case of Shelby County v. Holder, on which the justices will hear arguments Feb. 27, challenges the constitutionality of Section 5 of the Voting Rights Act.

That part of the landmark federal law, last reauthorized in 2006, requires Texas and a small number of other states to get permission from the Justice Department or a federal court for any changes that would affect voting, an effort to prevent illegal discrimination. Included would be steps like redrawing electoral districts, switching from at-large to single-member representation, adding seats to an elected body and new rules for casting a ballot.

Abbott has for some time been itching to hitch his star to ending preclearance, which would be a humongous Republican political victory. But it was Shelby County that got to the justices first.

An area of about 200,000 residents outside Birmingham, Shelby County encompasses cities that have run into DOJ objections over annexations and redistricting plans. Shelby County v. Holder will test whether the Supreme Court is ready to say that Congress was wrong when it determined that requiring preclearance remains a "congruent and proportional" remedy for whatever voting discrimination continues today.

But Abbott's "friend of the court" brief makes it sound as though the best proof of Section 5's intrusion into state sovereignty is Texas' abuse at the hands of the Obama administration.

DOJ "used every weapon in its arsenal to thwart" the voter ID law, the brief argues. Justice lawyers delayed action until the last minute on deadlines, dragging things out for months. They repeatedly asked the state for more information to gauge the impact on minority voters of having to secure a photo ID to vote.

How dare U.S. Attorney General Eric Holder give a TV interview saying Texas couldn't show evidence of widespread voter impersonation, the supposed problem that requiring an ID would tackle.

And it was just unacceptable that lawyers for the government and other parties in the suit deposed 12 Texas legislators on "a massive fishing expedition" looking for a racially discriminatory purpose behind the law. My gosh, they even asked "undignified and unprofessional questions": "Did Texans have more confidence in their elections when elections were limited on the basis of race?"

"Have you ever heard that African Americans in your district consider you to be racially biased against minorities?"

Shouldn't there be a law against that?

I don't doubt that DOJ stood tough against Texas officials who had bullied their way to a law that clearly was more about power than fraud. But Abbott and his team conveniently ignored that a panel of federal judges ruled 3-0 against Texas on voter ID.

The state bore the legal burden of proving that the requirement wasn't motivated by racial discrimination and didn't cause regression in minority rights. And Texas failed.

In August, Judge David Tatel wrote that the fault rested with Texas, not with the Justice Department: For not acting with a sense of urgency in the litigation. For not collecting all the data officials said should be reviewed. For not backing up claims of minimal impact on minority voters. And, ultimately, for not crafting a law that could pass legal muster.

"During closing arguments, Texas's counsel complained that they had been shouldered with an 'impossible burden' in this litigation. This may well be correct, but Texas's lawyers have only their client to blame," Tatel wrote.

Section 5 might rely on an outdated formula for determining which jurisdictions are bound by it. And critics who say the law encourages race consciousness rather than eliminating it might have a point.

But if the Supreme Court intends to dismantle the Voting Rights Act, it shouldn't be because Texas Republicans got foiled on voter ID.

Linda P. Campbell is a Star-Telegram editorial writer.

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Twitter: @LindaPCampbell

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