Government
8:46 pm
Thu March 15, 2012

One Legal Look At Abbott's Voting Right Challenge

Texas Attorney General Greg Abbott has petitioned to throw out part of the Voting Rights Act, saying it’s unconstitutional. It follows the Justice Department’s move earlier this week to block the state’s Voter ID law. KERA’s Bill Zeeble reports one professor isn’t sure The AG’s argument is persuasive enough.

Texas Attorney General Abbott says the U.S. Supreme Court already upheld the constitutionality of laws requiring voters to show a photo ID at the polls. So for the Justice Department to now say Texas can’t implement its own voter ID law denies the state the ability to do what other states rightfully can under the constitution.

Abbott is challenging Section Five of the Voting Rights Act. Because of past discriminatory voting practices, that section says any changes to state election laws must be cleared first by federal authorities. That’s to insure voting rights are upheld.

Section 5 of the Voting Rights Act - Justice.gov

Abbott’s petition says Indiana, Kansas, and Georgia, among other states, have approved photo IDs, and argues Texas law is similar. But election law Assistant Professor Joseph Fishkin is not so sure. He teaches at UT Law School.

Fiskin: But even in the case in Indiana, nobody resolved a claim about whether this law discriminated against racial minorities.

Fishkin says the gist of Abbott’s argument essentially says Section Five may have been valid when there was overt racial election discrimination, but those days are over. Therefore, so is the need for the pre-clearance Section Five . Fishkin suspects if the case ends up before the U.S. Supreme Court, Abbott’s argument will not persuade a majority. Fishkin says just look at the recently redrawn district maps of Texas, where federal judges still cited problems of discrimination.

Fishkin: So to the degree that that sort of thing is still going on I don’t think the argument then strikes most justices as persuasive that section 5 is at this point unnecessary.

Still, Fishkin adds, he’s just not sure. Meanwhile, a similar case in Alabama was filed months ago, and Abbott’s critics say that case should play out first.

KERA sought comment from Attorney General Abbott, but his office said he was not available.

Attorney General's amended complaint seeking a declaratory judgment

 

Texas Attorney General's Office
FOR IMMEDIATE RELEASE
March 14, 2012
www.texasattorneygeneral.gov

State of Texas challenges constitutionality of Section 5 of the Voting Rights Act

The U.S. Supreme Court has already upheld the constitutionality of laws requiring voters to show a photo ID when voting at the polls. The U.S. Department of Justice argued in favor of those laws just a few years ago. For the Department of Justice to now contend that Texas cannot implement its voter ID law denies Texas the ability to do what other states can rightfully exercise under the Constitution.

The U.S. Supreme Court expressed serious misgivings about Section 5 in the Northwest Austin Municipal Utility District case. As recently as two months ago, Justice Kennedy stated from the bench that Section 5 places Texas at a disadvantage compared to other states. The Department of Justice is using Section 5 to deny Texas the right to enforce a law that is allowed under the U.S. Constitution. Section 5 cannot trump the Constitution.