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SCOTUS Punts on Fisher vs. UT, Lifts Part of Voting Rights Act

Two major rulings from the Supreme Court

By Richard Whittaker, Fri., June 28, 2013

Texas Attorney General Greg Abbott: Voter ID law will take effect immediately.
Texas Attorney General Greg Abbott: "Voter ID law will take effect immediately."
Photo by Jana Birchum

As the Texas Legislature roiled and boiled with the abortion debate, lawmakers and civil rights activists occasionally looked up to absorb the impact of two major rulings from the U.S. Supreme Court. As the highest court in the land nears the end of its current term, it issued two rulings that could have a huge impact on Texas: one on affirmative action at the University of Tex­as, and another on the Voting Rights Act. Oddly, both decisions were effectively a punt. (Also, Wednesday morning, the court struck down the Defense of Marriage Act, which prevented federal recognition of same-sex marriage. See austinchronicle.com/Newsdesk for updates.)

On June 24, SCOTUS issued its ruling on Fisher v. University of Texas at Austin: In 2008 Abigail Fisher, an unsuccessful UT applicant, claimed she had been discriminated against because she is white, and therefore does not benefit from the university's diversity policy. Seen by many as a key test of affirmative action law, Fisher's suit against the university had been rejected by the Western District Court and the 5th U.S. Circuit Court of Appeals. But rather than ruling in either party's favor, in a 7-1 decision SCOTUS simply referred the case back to the 5th U.S. Circuit. In the majority opinion, Justice Anthony Kennedy wrote that the court still saw the value of diversity in admissions. However, he also wrote that the lower court had not applied the right standard in rejecting Fisher's plea, and referred it back for further scrutiny. UT President Bill Powers responded that he was sure that his university's policy would pass this second inspection. He said, "Today's ruling has no impact on admissions decisions we have already made or any immediate impact on our holistic admissions policy."

SCOTUS normally only hands out decisions on Mondays and Thursdays. However, the following day it broke its traditional Tuesday silence by delivering its ruling on Shelby County v. Holder – a challenge out of Alabama to Section 5 of the Voting Rights Act. That's the section that requires U.S. Department of Justice preclearance for voting legislation and redistricting maps in traditionally discriminatory jurisdictions – including Texas. In a surprising decision, SCOTUS left Section 5 intact. Instead, by a 5-4 majority, they declared the lesser-known Section 4 unconstitutional. That's the section that defines which states and counties require preclearance: No Section 4, no way to enforce Section 5.

Much as Kennedy defended the need for diversity measures in university admissions, Chief Justice John Roberts made an argument for the Voting Rights Act as a whole. Penning the majority opinion, he wrote that, while minority turnout has increased since its passage in 1966, "There is no doubt that these improvements are in large part because of the Voting Rights Act." Moreover, he added, "Voting discrimination still exists; no one doubts that." However, since Section 4 was written in 1966, he argued that it no longer reflected current inequities or improvements. His solution: to throw out the current list, and recommend that "Congress may draft another formula based on current conditions."

Republicans were, unsurprisingly, ecstatic about this ruling. Gov. Rick Perry resurrected his 10th Amendment pandering by calling it "a clear victory for federalism and the states." Attorney General Greg Abbott responded quickly, saying that "With today's decision, the State's voter ID law will take effect immediately." The Texas Department of Public Safety will now start issuing Election Identification Certifi­cates, a free ID that can be used solely to take part in elections. However, that will do little to negate the longstanding complaints by opponents that there are not enough DPS offices. For example, in Austin – a city with a population of nearly one million – there are only three sites issuing state IDs. There are real concerns that the state's poorest and most remote residents will not take advantage of the ID, and will remain disenfranchised.

There could be also be an unexpected twist for education advocates, removing strictures on the Texas Education Agency. Education Commissioner Michael Williams – seen promenading through the Capitol in a white suit as Sen. Wendy Davis launched her mammoth abortion filibuster – lauded the ruling for allowing the TEA to enact significant changes, such as installing managers at a school district, without federal approval. Calling the old system "akin to seeking permission to send a fire truck while the building continues to burn," he said the ruling would ensure the absorption of the troubled North Forest Independent School District into Houston ISD on July 1. 

The NAACP immediately decried the ruling, writing that "There is no longer a mechanism in place to prevent states with a history of voter disenfranchisement from enacting such laws." However, Texas still finds itself in court for violations of Section 2 of the VRA, the key provisions relating to racial discrimination in voting laws and practices. Moreover, while the current dysfunction of the Republican-dominated Con­gress makes a new Section 4 unlikely, the Mexican American Legislative Caucus is already working with its attorneys to find ways to keep Texas covered by Section 5 through legal intervention. MALC attorney Jose Garza said, "If there is a candidate for judicially mandated preclearance, it just might be Texas."

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