Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the potential broad impact of the recent Voting Rights Act decision in Texas.
THE STATEMENT AT ISSUE:
“To the extent the state [of Texas] argues that the ‘results’ test [of the Voting Rights Act’s Section 2] is unconstitutional, we note that this court and many others have upheld its constitutional validity…We are bound by these precedents to conclude that Section 2, as applied here, does not deviate from the purpose…to ensure black equality [under the Fourteenth and Fifteenth Amendments.”
—Excerpt from a footnote in the August 5 decision by the U.S. Court of Appeals for the Fifth Circuit. That court declared that Texas violated Section 2 by passing a voter ID law that has the result of making it harder for black and Latino voters to cast ballots. At several key points as that case has been developing, Texas has been raising doubts about the constitutionality of applying Section 2 when there is no proof of a specific intent to discriminate in voting on the basis of race.
WE CHECKED THE CONSTITUTION, AND…
The Supreme Court has given itself the authority of having the last word on the meaning of the Constitution (unless, of course, a constitutional amendment does that), but major test cases on constitutional meaning do not start at the highest court. They have to be carefully prepared, and then pursued first in lower courts, yet there is never a guarantee that the Justices will ultimately agree to take on the claim, let alone agree with it.
The Justices, though, can send out signals that they might well become available at some point to rule on a new constitutional claim, and lawyers – especially those who work for ideological causes or movements – are more than eager to take a hint that comes in a field where they work.
That is exactly what happened, for example, when the Court, in a 2009 ruling in a Texas voting rights case, raised serious doubts about the constitutionality of key sections of the 1965 Voting Rights Act, but did not strike them down. Those provisions in the Act gave federal officials special powers to veto, in advance, new state laws governing voting, in states with a history of racial bias in elections.
It did not take long for conservative activists to develop a sequel case -- Shelby County v. Holder. And, in a major blow to the 1965 Act, the Court two years ago used that case to nullify the advance-clearance power for those states, finding that the formula for invoking that authority was too much out of date and wrongly singled out the states where it applied. (The coverage formula was in the law’s Section 4, and the decision specifically struck that down; but the pre-clearance provision, in Section 5, depended upon that formula, so it, too, was effectively nullified.)
As one scholar has noted, “in the wake of Shelby County, many states are looking to push the boundaries of Section 2 in order to defend their state election laws.” One such state, that observer noted, was Texas.
Section 2 basically guarantees that minority voters will not have their power at the polls diminished by election practices that make it harder for them to elect candidates of their choice. It was a part of the original 1965 law and, unlike Sections 4 and 5, it applied potentially to voting laws in every state. However, the Supreme Court in 1980 ruled that Section 2 could only be used to challenge voting laws that intentionally discriminated against voters based on race. Of course, proving that a governing body had the specific aim of racial bias is a very hard task.
Two years later, Congress shored up Section 2, amending it so that it applies to voting laws that had the actual practical effect – even without a biased purpose – of diminishing the voting rights of minorities. That inaugurated the so-called “results test.”
After the Shelby County decision, the federal Justice Department and civil rights groups shifted their strategies to try to make greater use of Section 2. That, as well as constitutional challenges, formed the heart of major lawsuits against voter photo ID laws in Texas and North Carolina, in particular.
Although federal officials and civil rights groups have no doubt about the constitutionality of Section 2’s results test, it is a curious historic fact that the Supreme Court has never explicitly upheld its validity. The Justices have sort of assumed that in a number of cases, but several of the Justices have from time to time raised doubts about whether it goes too far to intrude upon state power to regulate elections, and may exceed Congress’s constitutional power to protect minorities affected by state voting laws.
The state of Texas, in the case challenging its voter ID law, has fought back energetically to the Section 2 challenge. In a pair of written legal briefs it filed in the Federal Fifth Circuit Court, it said that the only way to avoid a constitutional problem of using race as a dominant factor in judging voting laws was to interpret Section 2 narrowly.
For example, the state argued, if Section 2 means that states must actually assure every voter a free photo ID, based on race, that would violate the Fifteenth Amendment.
In a decision on the Texas law last week, the Fifth Circuit Court ruled that the voter ID law does violate Section 2 because it falls more heavily on the rights of black, Latino and poor voters. It turned aside Texas’ constitutional doubts, noting that it and other courts had specifically upheld Section 2. It did not cite a specific Supreme Court ruling that had done so.
The Circuit Court’s constitutional comment, though, seemed less than enthusiastic, saying only that it found that the law was not invalid under Section 2 “as applied here.”
With that decision relying solely on Section 2 (the court found it did not have to reach constitutional questions about the Texas law), that will be the focus of Texas’ continuing efforts to defend its law. It now has two options: to ask the full Fifth Circuit Court bench to reconsider the case, or go on to the Supreme Court.
Given that the constitutionality of Section 2 may still be, in fact, an open question for the Supreme Court, Texas will be very tempted to try to get the Justices to answer that question its way.
