The ultimate (and likely) success of Texas Republican’s efforts to pass a voter suppression bill carefully targeted to make it harder for people in cities — i.e., places where there are large populations of people who are not white and who Republicans believe reliably vote Democrat — to exercise their right to vote will rest on the actions of five critical allies, all justices of the U.S. Supreme Court.
Had five conservative justices in 2013 not gutted landmark civil rights legislation designed to prevent exactly what Texas is trying to do, the Biden administration would be able to stop the Texas law — and others like it, in states like Georgia — from going into effect.
Texas Republicans have made this legislation a top priority this year and, despite the delay created by the desperate legislative maneuverings of a Democratic minority that recognizes how high the stakes are, Gov. Greg Abbott’s announcement that the bill will be considered during a special session all but assures its passage.
The Texas bill is one of the most egregious of the voter suppression statutes Republican Legislatures are passing in support of former President Donald Trump’s “Big Lie” that the 2020 election was stolen. Despite the fact that countless lawsuits and audits have not turned up any material fraud — and none has been alleged in Texas, where Trump and other Republicans won handily — Texas Republicans have decided to make their already bad voting laws considerably worse. The bill will empower partisan poll watchers to harass voters, make it considerably harder to vote by mail, and ban drive-thru voting, drop boxes and the use of mobile structures to collect ballots.
You might think this sounds like the state of Texas is trying to pass legislation that specifically targets Black and Latino voters’ access to the polls, which you thought was illegal.
Most of the latter measures are directed at Harris County — which has nearly 5 million residents and a large population of people of color — which had taken those steps to help voters avoid long Election Day lines that state Republicans deliberately tried to create in major urban areas. The steps were successful, which is precisely why Republicans are trying to ban them.
Perhaps the most telling provision of the bill is its ban on Sunday voting before 1 p.m., which doesn’t even have the pretense of being about the integrity of elections: The Legislature, naturally, had no evidence that it’s easier to commit voter fraud at 10 a.m. than 2 p.m. The sole purpose of the bill is to interfere with the “Souls to the Polls” initiative that Black churches use to encourage turnout by their parishioners.
At this point, you may be thinking that this all sounds rather like the state of Texas is trying to pass legislation that specifically targets Black and Latino voters’ access to the polls, which you thought was illegal. After all, we did fight a Civil War and go through the civil rights movement to stop states from denying equal citizenship rights — including equal access to the franchise — to racial minorities.
Well, we did. But then the Supreme Court stepped in.
The 15th Amendment — one of three ratified in the wake of the Civil War — forbids states from discriminating on the basis of race in their election laws and practices. Like all of the Civil War amendments, Congress was given the power to enforce this amendment with “all appropriate legislation” and, in 1965 it finally did just that by passing the Voting Rights Act, the most important civil rights law passed by Congress since Reconstruction. The most important provision of the VRA required jurisdictions with a history of denying people the right to vote based on their race to “pre-clear” any changes to their election laws with the Department of Justice.
Texas was one of the covered jurisdictions. (Lest you think this was strictly regional, both Brooklyn and the Bronx were also covered jurisdictions, as were three counties in California and two townships in Michigan.)
If the Voting Rights Act were still in full force, there would be no chance that Texas’ proposed bill would be permitted to go into effect by the Biden administration.
But in the infamous 2013 decision Shelby County v. Holder, a 5-4 party-line majority of the Supreme Court ruled that the preclearance formula in the Voting Rights Act was unconstitutional because it violated the “equal sovereignty of states” as those states covered by preclearance hadn’t instituted any race-based voting laws since it was passed, so they should no longer be subject to the law’s review. In other words, the framers of the 15th Amendment empowered Congress to protect the right to vote, Congress used that power to pass legislation that did that successfully, and a partisan Supreme Court ruled the law unconstitutional because it worked too well.
Legally, the decision was a train wreck. “This is a principle of constitutional law of which I had never heard,” wrote Reagan-appointed federal Judge Richard A. Posner about the court’s “equal sovereignty” holding, for the “excellent reason” that “there is no such principle.”
Even if one could leave aside the opinion’s utter lack of any foundation in the text of the Constitution, its internal logic was preposterous on its face. Arguing that Congress had lost its authority to enforce the 15th Amendment in its preferred manner because its remedies are too effective, as University of Colorado law professor Paul Campos observed, is like arguing “that a vaccine that protects against an illness is no longer necessary, because those who have been given the vaccine do not develop the illness.”
But more to the point, in 2021, if the Voting Rights Act were still in full force, there would be no chance that Texas’ proposed bill would be permitted to go into effect by the Biden administration.
There is another way to stop Texas Republicans from attacking the right to vote, though. The House of Representatives has passed legislation that would, among many other things, give everyone in America the option of voting by mail and guarantee two full weeks of early voting in every state. Republicans, of course, have vowed to filibuster the legislation.
So if Sens. Joe Manchin of West Virginia, Krysten Sinema of Arizona and other Democrats who may currently oppose reforming the filibuster remain opposed, they’ll allow Republicans to continue to block new voting rights legislation, and join the Roberts court as critical allies in the Republican war on democracy.
The Supreme Court is clearly not going to protect Americans’ voting rights, so it is the duty of Congress to act.