(Bloomberg) — Republicans across the U.S. can thank the Supreme Court and Chief Justice John Roberts as they enact the country’s most significant voting restrictions in generations.
The court’s watershed 2013 Shelby County ruling created a glide path for many of election changes GOP-controlled legislatures are pushing this year. The Roberts-written decision wiped out the 1965 Voting Rights Act’s requirement that jurisdictions with a deep history of discrimination get federal preclearance before changing their voting rules.
Texas is poised to join Georgia as a GOP-controlled state using its newfound freedom from that requirement to enact measures that critics say suppress voting by racial minorities. Other states that weren’t subject to preclearance, including Florida, are also passing restrictions, creating a cascade of new voting laws that could boost Republicans in the 2022 and 2024 elections.
“The boldness, the blatant suppression that you see here is a hallmark of lawmakers knowing that there’s no check at the end of the day in terms of needing to get precleared,” said Tommy Buser-Clancy, an attorney with the American Civil Liberties Union of Texas.
The changes have been fueled by former President Donald Trump’s unfounded claims that fraud cost him the 2020 election. Though courts, state election officials and Trump’s own election-security chief repeatedly rejected those allegations, Republicans now say voter confidence has been shaken — and needs to be shored up.
“Americans no longer trust the system,” Texas’ Republican lieutenant governor, Dan Patrick, said in April. “And a country where voters no longer trust the system is a country in trouble.”
The Shelby County decision is one of two major high court rulings that could boost GOP election prospects in the coming years. In the other, the court ruled in 2019 that judges can’t toss voting maps for being too partisan — a decision likely to disproportionately help Republicans given their control over this year’s redistricting in key states, including Texas and Florida. Both were written by Roberts, who has become a pariah in conservative circles for his votes on other issues, including Obamacare.
And the court, which now has a 6-3 conservative majority, is scheduled to rule by June on a separate section of the Voting Rights Act in a case that could make it harder for voter-access advocates to challenge the new wave of Republican laws.
On Friday, the Texas House approved a bill that would enhance protections for poll watchers and criminalize sending unsolicited absentee-ballot applications to voters.
The state’s Senate previously passed a more far-reaching version that would let partisan poll watchers record people casting ballots and would ban all-night voting, something that proved popular in heavily minority Houston last year when Harris County allowed it for a single day.
Lawmakers are expected to start meeting in closed-door sessions next week, to reconcile the two approaches, with an eye toward final passage before the legislature adjourns May 31. Texas Governor Greg Abbott, who has called the voting legislation a top priority, is likely to sign whatever bill passes.
Texas would add to a cascade of voting changes this year by Republican-controlled states, a group that also includes Iowa, Arkansas, Utah, and Montana.
A decade ago, Texas’ changes couldn’t have taken effect until the state got clearance from either the Justice Department or a federal court. Under the Voting Rights Act’s Section 5, covered jurisdictions were required to show that any new voting procedures weren’t intentionally discriminatory and didn’t have the effect of discriminating.
Section 5 was the centerpiece of the landmark 1965 law, which helped ensure that millions of Black voters could cast ballots. The provision covered nine mostly Southern states, including Texas, Georgia and parts of six others, including New York’s Bronx, Kings and New York counties.
From 1975 to 2013, the Justice Department used Section 5 to block 207 Texas voting changes as discriminatory and prompt the withdrawal of hundreds of others. The thwarted changes included redrawn voting district maps, the relocation of polling places and new procedures for electing government officials.
The disputes ranged from local matters — an objection by President Jimmy Carter’s administration to using an American Legion hall for school board elections in Raymondville because “many Mexican Americans feel unwelcome” — to the George W. Bush administration’s rejection of a new state legislative map that would have reduced the number of predominantly Latino districts.
In 2012, Barack Obama’s Justice Department halted a Texas photo-identification requirement, saying Hispanics were disproportionately among the more than 600,000 registered voters who lacked one of the required IDs. The Justice Department also said the state had made obtaining an ID expensive and time-consuming, particularly for those in the 81 counties with no Department of Public Safety office.
“The state has failed to propose, much less adopt, any program for individuals who have to travel a significant distance to a DPS office, who have limited access to transportation, or who are unable to get to a DPS office during their hours of operation,” the Justice Department said.
All that changed with the 5-4 Shelby County v. Holder decision, which threw out the Voting Rights Act’s formula for determining which jurisdictions had a deep enough history of discrimination to warrant making them subject to Section 5.
As with the rest of the Voting Rights Act, Congress had repeatedly reauthorized the coverage formula, most recently in 2006. But Roberts faulted Congress for continuing to base coverage on decades-old voting data and past use of literacy tests, which had been banned for more than 40 years.
“Things have changed in the South,” Roberts wrote, adding that voter registration and turnout rates were near parity, blatant evasions of federal court orders were rare, and racial minorities were holding office at an unprecedented rate.
“Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” Roberts said. “It instead reenacted a formula based on 40-year-old facts having no logical relation to the present day.”
Dissenting Justice Ruth Bader Ginsburg said those improvements merely showed the preclearance requirement was working. Tossing it out, she said, was “like throwing away your umbrella in a rainstorm because you are not getting wet.”
The ruling didn’t preclude Congress from updating the coverage formula, but political realities all but guaranteed that wouldn’t happen. The decision effectively nullified Section 5 and left the law’s Section 2, which outlaws discriminatory voting practices but requires after-the-fact lawsuits, as its most potent provision.
Just hours after the Shelby decision was issued, then-Texas Attorney General Abbott said the photo-ID law would take effect immediately. Opponents quickly sued under Section 2 but were only partially successful. Texas eventually was able to implement a modified version of the law, with a provision letting voters sign a sworn statement saying they couldn’t reasonably obtain one of the required IDs.
“Section 5 was undoubtedly the most potent tool in the Voting Rights Act,” said Mimi Marziani, president of the Texas Civil Rights Protect. In the photo-ID dispute, “Section 5 stopped that law in its tracks. Section 2 resulted in watering it down and creating a safety valve for people who couldn’t get IDs.”
Beyond the practical impact, the Shelby County ruling emboldened lawmakers, Marziani said. Republicans read the decision to mean that “the Supreme Court was not going to actively referee attempts to manipulate election law for partisan benefit,” she said.
Freed from the preclearance requirement, Texas in 2017 widened its definition of mail-in ballot fraud and increased criminal penalties on those who engage in it. That same year the state eliminated straight-ticket voting. Critics said both steps had a discriminatory impact on racial minorities.
The current Texas proposals may be the most divisive yet. Democrats say Republicans are simply worried about the state’s growing number of young and racially diverse people.
“This is 100% a voter suppression tactic meant to keep voter turnout to an all-time low,” Texas Representative Trey Martinez Fischer, a Democrat, said in a phone interview.
Texas Senator Paul Bettencourt, a Republican and one of the sponsors of the bill that passed the Senate, said the measure is designed to improve the voting system and increase confidence in elections.
“The idea that it is suppression, that those who support it are engaged in suppression, that it’s some kind of Jim Crow suppression, it’s ridiculous,” Bettencourt said, referring to laws imposed in Southern states after the Civil War that robbed Blacks of their rights.
Opponents will be able to challenge the new Texas law under Section 2 of the Voting Rights Act, but the Supreme Court is considering weakening that provision as well. The justices are scheduled to rule by June in an Arizona case over the legal standard that applies when laws are challenged as making it disproportionately harder for minorities to register and vote.
The Republican Party is asking the court to largely bar Section 2 suits over rules that govern how people register to vote, when they can cast their ballots and what identification they must show.
Arguments in March suggested the justices weren’t likely to go that far. Still, they indicated they were supportive of the two Arizona restrictions at issue in the case: its criminal ban on most third-party ballot collection and a separate, longstanding policy of rejecting ballots cast in the wrong precinct.
“Section 2 still remains at the moment a viable avenue for continuing to try to enforce voting rights laws,” said Buser-Clancy, the ACLU attorney. “But it can only do so much, and it doesn’t act as the same deterrent against passing all of these voter suppression laws. And that’s why you’ve seen the flood of them ever since Section 5 got struck down.”