Point Austin: About Those Voting Rights

Colorblind ain't the same as blind

Point Austin
Is it a coincidence that the Texas Legislature should be once again considering a "voter ID" law just as the Canyon Creek Voting Rights Act lawsuit reaches the U.S. Supreme Court? Not really – both proceedings are fundamentally about racial discrimination, and race has been the primary undercurrent of Texas and Southern politics for 150 years. And as it happens, both effectively Republican efforts rest on the sleight of hand that while racial discrimination, especially in voting rights, was once a terrible and burdensome legacy of the Old South ... we're all past that now, and everybody's equal. There's no reason to provide special protection to minority citizens who were once, in a far-off distant past, subject to occasional discrimination but now just need to "get over it."

As I write, it's uncertain what will happen in either process. Voter ID became the signature symbolic issue at the Lege session kickoff – firing passions and tying up the Senate for days – and at the moment it appears House GOP hard-liners are more interested in forwarding an uncompromising bill than in winning moderate votes, perhaps under the theory that a headline defeat to those evil, liberal Democrats is in some ways easier to flog on the primary trail than would be a limited victory. A Supreme Court decision on Section 5 of the Voting Rights Act – the "preclearance" provision that requires election authorities in certain jurisdictions, including Texas, to submit procedural changes to the Department of Justice for prior review – is not expected before June.

Timing is everything, but under the current Voting Rights Act, the state of Texas would have to submit any new voter ID procedure to the DOJ for a ruling over whether it disproportionately affects minority voters. Conversely, if the Supreme Court throws out Section 5, presumably minority voters would have to begin once again at the bottom, bringing specific lawsuits over any alleged discrimination in voting procedures – such as the 2008 Waller County attempt to suppress Prairie View A&M student voting, proposals last year by South Texas officials to cut back on available voting hours, or most notoriously, the years-long re-redistricting of Texas congressional districts that eventually resulted in the overturning of some of those districts by the same U.S. Supreme Court.

Yet here was Chief Justice John Roberts two weeks ago, dismissing out of hand the deterrent effects of Section 5. "It's the elephant whistle: 'I have this whistle to keep away the elephants.' Well, that's silly; there are no elephants, so it must work."

Although Roberts may not be able to see them, there are plenty of two-legged elephants in Texas; unsurprisingly, several other Southern states covered by Section 5 are also currently considering voter ID laws.

See No Evil

When I last saw Gregory Coleman, the former Texas solicitor general was telling the board of the Northwest Austin Municipal Util­ity District No. 1 (better known as Can­yon Creek) that his firm would be happy to underwrite the board's lawsuit against the federal government. More precisely, right-wing foundations and donors had been shopping for just this kind of district – tiny, suburban, and in this instance captured by a small group of libertarian ideologues who thought it an outrage that when they wanted to move the water district's polling place, they had to submit a brief application (readily approved) to the DOJ. Without the American Enterprise Institute funding, of course, there would have been no lawsuit – although it would have been amusing to see the board attempt to raise water fees to accommodate Coleman and his colleagues' hourly rates. These guys are all in favor of activist judges – as long as somebody else is paying the bill.

Busted by the lower courts – who didn't buy either the argument that the Canyon Creek water district could opt out of general Travis Co. voting requirements or that Congress was wrong in accumulating volumes of evidence that voting discrimination still disproportionately occurs in the covered jurisdictions – Coleman now faced the Supremes and argued that we have entered "a different time" and Section 5 is no longer necessary. Four justices (John Roberts, Samuel Alito, Antonin Scalia, and Clarence "Silent" Thomas) seem certain to vote to overrule Congress, and four (John Paul Stevens, David Hackett Souter, Stephen Breyer, Ruth Bader Ginsburg) seem likely to endorse the law and several court precedents sustaining it.

During oral arguments, Justice Anthony Kennedy, who delights in being the swing vote and making eponymous history, praised the Voting Rights Act but found himself very troubled that it only applies to certain states or parts of states (16 in all). "Congress has made a finding that the sovereignty of Georgia is less than the sovereign dignity of Ohio. The sovereignty of Alabama is less than the sovereign dignity of Michigan," Kennedy pondered somberly. "The governments in one are to be trusted less than the governments in the other." He may not have gotten the memo that confirmed, through several hundred years of U.S. history, that Georgia and Ala­bama (and Texas, etc.) found it somehow impossible to recognize the humanity, let alone the voting rights, of minority citizens.

Did he really just fall off the turnip truck?

Still Fighting

Law professor (and former assistant attorney general nominee) Lani Guinier was asked on National Public Radio whether it's still fair to single out certain states for enforcement of civil rights. "If you are comparing the commitment of the federal government to the commitment of the covered jurisdictions," Guinier answered, "there's no question that without the involvement of the federal government – whether it was through Brown v. Board of Education, the Supreme Court; whether it was through President Eisenhower sending in the troops to desegregate the schools in Little Rock; whether it was through the adoption of the Voting Rights Act in 1965 or the civil rights laws of 1964 – it has required the intervention of the federal government to get many of these so-called 'sovereign states' to realize that they didn't win the Civil War."

So this is where we are, 150 years later, with the Supreme Court pondering whether Texas is sufficiently civilized on racial matters to be trusted to treat its minority citizens equitably in matters of voting rights. Perhaps if Justice Kennedy would review the current debate in the Texas Legislature over the voter ID bill – so transparently aimed at minority voters that it might as well be called the Precinct Skin-Color Harassment Act – he'd remember why the feds still need to keep an eye on the good ol' boys down here.

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voting rights, 81st Legislature, Voter ID, U.S. Supreme Court, Canyon Creek, Voting Rights Act

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