21 Aug The Never-ending Struggle for Voting Rights in Texas

by Annie Melton

When President Lyndon Baines Johnson signed the Voting Rights Act in 1965, surely his home state loomed large in his mind; Texas, which began restricting ballot access immediately upon becoming a state, had been a perpetual presence in the decades-long battle to secure and maintain the right to vote.

In the 19th and early 20th centuries, these restrictions took the form of explicitly racist laws that excluded black and Latino voters. Over time, the state’s disenfranchisement became more subtle, but no less effective in limiting the number of voices heard every election season. Today, Texans face a number of obstacles in exercising their right to vote, including the state’s photo identification law and the state’s continued failure to comply with the “Motor Voter” law.  

The VRA allows the federal government to monitor states’ election rules and procedures. One of the law’s methods of oversight is its preclearance requirement, Section 5. This requirement provides that the U.S. Department of Justice or a federal court must approve any changes a covered state or county seeks to make to its rules.

To be subject to Section 5, a state’s election practices must be deemed discriminatory under a different part of the VRA, Section 4(b). Texas’s failure to provide Spanish-language voting materials met Section 4(b)’s discrimination standard (updated in 1975 to include discrimination against language minorities), placing the state under Section 5 review until 2013 — the year of Shelby County v. Holder.

In Shelby County, the Supreme Court found Section 4(b) unconstitutional, thus rendering Section 5 ineffective. Shelby County, an enormously controversial decision, was the answer to a question left open in a Texas case that reached the Supreme Court in 2009, Northwest Austin v. Holder. Shelby County drew heavily from Northwest Austin, a case in which the Court questioned — but did not rule on — the constitutionality of the VRA.

In Northwest Austin, Chief Justice John Roberts mentioned his “concerns” with Sections 4(b) and 5; in Shelby County, he addressed those concerns head-on. In his majority opinions in these two cases, Chief Justice Roberts wrote that the circumstances justifying the VRA’s passage in 1965 — the explicit discrimination that kept many would-be voters from participating in the political process — no longer existed. Of course, after Shelby County, the states that had been under Section 5 review returned to their old ways; Texas’s photo  ID law went into effect mere hours after the Supreme Court’s decision.

Texas has also struggled to follow the National Voter Registration Act (the “Motor Voter” law), another major piece of federal voting rights legislation. The NVRA was passed in 1993 as a complement to the VRA, intended to simplify the registration process by allowing, among other things, voters to register or update their registration when they apply for or renew their driver’s license.. A number of eligible Texas voters who attempted to update their voter registation  when they updated their driver’s license through Texas’s online driver’s license system found out, only when they attempted to vote, that Texas did not update their voter registration  ; TCRP is suing the state on behalf of three of those voters.

These contemporary challenges are the latest chapter of an ongoing saga. In 1944, in the landmark voting rights case Smith v. Allwright, the Supreme Court struck down a law that allowed the Texas Democratic party to create its own membership rules, which the party used to exclude black voters from primary elections. Texas Democrats had long taken measures to disenfranchise non-white Texas voters, finding new ways to do so after repeated legal challenges forced them to change party rules. This ever-evolving discrimination worried the Court; “Constitutional rights would be of little value if they could be thus indirectly denied,” wrote Justice Stanley Reed, the author of Smith’s majority opinion.

Unfortunately, indirect denials persist. Laws like the VRA and the NVRA give Texas a chance to break away from its troubling history on voting rights. The state has yet to embrace this opportunity, but in the meantime, the Texas Civil Rights Project will.

Annie Melton is a law clerk at the Texas Civil Rights Project.