At the start of the 21st century, Texas held the curious, if not bemused, attention of the national political establishment. As the state that launched George W. Bush’s political career, it became associated with the 44th president’s drawl, swagger, and occasional aloofness. During the Obama Administration, Texas gained a sort of ‘rebellious’ reputation with the rise of conservative hardliner Ted Cruz, the freshman senator responsible for shutting down the government, and lead state officials like Greg Abbott, who reportedly boasted, “I go into the office in the morning, I sue Barack Obama, and I go home.” To Republicans, Texas was a dreamy conservative promised land complete with fields of oil derricks and suburban megachurches. To Democrats, the Lone Star State was something to chuckle at.
Since 2016, however, Texas has taken on a more serious light in the eyes of both Democrats and Republicans alike. The former sees a purple-tinted jewel of 38 electoral votes, taking careful note of Hillary Clinton’s returns in suburban areas, flipped districts in Houston and Dallas, and of course, the ill-fated yet groundbreaking Senate campaign by Beto O’Rourke. The latter, on the other hand, sees a longtime conservative bastion becoming vulnerable to shifting demographics, charismatic Democrats, and dissatisfaction with the president.
In spite of the impending political threat, Texas Republican legislators maintain a comfortable hold on state and federal offices. They took note of the changing tide long before the rest of the country, and instead of gaping or griping, have largely secured their positions with effective, albeit unethical, measures. By passing restrictive voting laws and fighting the federal government at every turn, they have, in one progressive operator’s words, employed a “panoply of voter suppression” techniques in order to offset the effects of their evolving electorate. This article seeks to catalog such instances of suppression, examining their foundation in law and their efficacy in diminishing the value of or eliminating entirely, the votes of Texans.
Voter Identification Laws
Voting Rights Act of 1965
To understand Texas voting laws, one must first know the substance of the Voting Rights Act (VRA) of 1965 and how it has evolved over time. Signed into law by President Lyndon B. Johnson, the VRA emerged as a culmination of decades of fighting for African-American suffrage. Although the 15th Amendment of the Constitution legally afforded African-American (males) the right to vote, discriminatory and restrictive measures began to flourish in northern and southern states alike, such as the implementation of poll taxes and literacy tests designed to bar black voters. Congressional measures and the 24th Amendment, which specifically prohibited poll taxes, only stalled voter suppression efforts as anti-suffragists discovered new tactics. The VRA served as a comprehensive assault on discrimination at the polls, and its subsequent reauthorizations and expansions have largely cemented its place as a powerful tool in supporting citizens in their right to vote.
Sections 2 and 5 are most pertinent to contemporary voting rights. Plain and simple, Section 2 enables the Attorney General as much as free citizens the right to challenge discriminatory voting practices, be they in regards to gerrymandering, voter identification laws, or the location of polling places. Under Section 2, plaintiffs must prove that state, district, or municipal voting practices are discriminatory in “a totality of circumstances,” essentially meaning that all known facts regarding historical discrimination and racial-based voting patterns can be included as evidence.
Whereas Section 2 acts as a kind of ‘opt-in’ procedure for challenging voting procedures and practices, Section 5 serves as an automatic check, establishing a federal review process for jurisdictions with histories of voter disenfranchisement. Section 4 of the VRA, now derelict, worked in tandem with Section 5, providing the formula to determine which jurisdictions were subject to Section 5 procedure. Those that were had to notify the Department of Justice (DOJ) of any alterations to voting policy, which then underwent a review process known as “preclearance.” Either the attorney general or a three-judge panel from the federal district court would then approve or disapprove of the changes submitted.
Shelby County v. Holder
Everything changed in 2013 following a decision handed down by the U.S. Supreme Court, Shelby County v. Holder. Declared by five votes to four, with Republican-appointed justices in the majority and Democratic-appointed justices dissenting, Shelby County repealed Section 4 of the VRA, effectively gutting Section 5’s mandate. Speaking for the majority, Chief Justice John Roberts argued that the Section 4 formula was outdated, claiming that Congress had not reviewed it closely enough during the 2006 reauthorization. However, it should be noted that in 2006, both Sections 4 and 5 were reauthorized by Congress for 25 years with wide bipartisan support (390-33 in the House, 98-0 in the Senate). In her dissent, Justice Ruth Bader Ginsburg compared the cessation of the functional preclearance procedures to “throwing away your umbrella in a rainstorm because you are not getting wet.”
Texas Senate Bill 14
In 2011, the Texas State Legislature passed Senate Bill 14 (S.B. 14) requiring its citizens to display approved photo identification at the polls. If potential voters could not provide an approved ID, they would not be allowed to cast a ballot. Previously, Texans could sign an affidavit affirming to who they were and present forms of more informal identification, such as bills, paychecks, or expired IDs.
The problems with voter ID laws are well documented. For starters, the ACLU reports that 11% of Americans –that is, over 21 million– lack government-issued identification. In Texas specifically, roughly 600,000 people, or 4.5% of registered voters, do not possess the required ID under S.B. 11., a disproportionate number of which are African-American or Latino.
What causes these racial disparities? The short answer is money and access. Forms of identification that may be considered common members of the middle and upper socioeconomic classes –driver’s licenses, passports, or Texas identification cards– are not necessary in the everyday lives of poorer citizens. Furthermore, not only do some forms of identification require a literal fee, but the time-consuming application process can take away from childcare or time at work.
This problem is exacerbated in rural areas of the state, where securing a driver’s license or Texas identification card could require a 100-mile round trip. Even in metropolitan areas, access to a Department of Public Safety (DPS) office can be difficult for low-income citizens. Public transportation is not as commonly used in the sprawling cities of Houston, Dallas, and San Antonio, as it might be in New York or Washington, D.C. This further disenfranchises citizens of color; according to an expert witness involved in S.B. 11-related litigation, the percentage of eligible-to-vote African-Americans and Latinos living in households without cars is greater than the percentage of eligible-to-vote whites living in households with a car. The specific forms of identification deemed acceptable by the Texas State Legislature seem to target older, white voters while excluding citizens of color; as one American Politics Research article observes, Texas concealed carry handgun licenses, the majority of which are owned by whites, are considered acceptable, while public university student IDs and social service cards are not.
S.B. 14 was immediately blocked and subject to federal review under Section 5 of the VRA, so the State of Texas filed for preclearance with Attorney General Eric Holder shortly after the bill’s passage. In 2012, Attorney General Holder concluded that Texas could not prove the bill did not have retrogressive effects, noting that “Hispanic registered voters are more than twice as likely as non-Hispanic registered voters to lack” an ID approved under the new law. He added that 81 of the state’s 254 counties lacked DPS offices, a sizeable obstacle for would-be voters seeking identification. The State of Texas pursued the alternative legal avenue under Section 5 only to meet the same fate when the federal district court concluded that S.B. 11 “imposes strict, unforgiving burdens on the poor.”
However, after the Shelby County decision in 2013, Texas no longer needed to submit new voting laws for federal review, and S.B. 14 was put into full force. Immediately after the announcement, multiple plaintiffs filed complaints under Section 2 of the VRA in Veasey v. Perry, basing their case in some of the aforementioned disparities. The State of Texas countered that S.B. 11 combatted voter fraud and actually had the potential of increasing turnout via popular faith in the electoral system. This battle waged back and forth through 2017, with the plaintiffs winning cases only to face appeals by Texas’ lawyers. Ultimately, having spent millions of dollars on litigation fees, Texas provided a legislative substitute for S.B. 11: S.B. 5.
Texas Senate Bill 5
The revised bill won approval from the U.S. District Court of Appeals for the Fifth Circuit in April of 2018, though the Veasey v. Perry plaintiffs noted that it made only “scant changes” and still carries “the discriminatory strain of its predecessor.” The changes, indeed, were few. “Passports,” defined by S.B. 11 as acceptable identification, would be clarified to include passbook cards and books as well. The permitted timespan of expiration for an ID was extended from 60 days to four years. Most notably, the bill created the Reasonable Impediment Declaration (RID), a concept somewhat reminiscent of the provisional ballot. A citizen without an acceptable form of identification first fills out a declaration, which requires a serious of informal identification documents (e.g. utility bill or bank statement) and an explanation as to why the citizen lacks permitted identification. Veasey v. Perry plaintiffs note that the form bears a threat of prosecution for perjury if the potential voter lies or misstates his or her information.
Although the RID appears to be a step in the right direction, it remains a cumbersome, unnecessary step in what should be an easy task for all registered voters. As 2018 was the first election in which RIDs played a role, future studies will have to evaluate the frequency of their usage and their overall effect on voter turnout. That said, the placement of a threat of felony outlined at the bottom of the application is likely a deliberate attempt to dissuade less-educated voters befuddled by the legalese and scared of the possibility of prosecution. All in all, voter ID laws, albeit watered-down, live on in Texas.
Voter Registration Laws
While voter ID laws play a major role in suppressing the vote, Texas’ anti-voting efforts start well before the polls. According to the U.S. Commission on Civil Rights (USCCR), Texas ranked 44th in voter registration in 2016, with only 68% of eligible voters registered. Not only is turnout prematurely doomed under these conditions, but the voting electorate –largely white and older– selects congressional and state delegates not representative of their districts.
Texas Election Code
The crux of the issue lies with Texas Election Code statutes that dictate who can legally register voters. Anyone who seeks to register voters must undergo Volunteer Deputy Registrar (VDR) training sessions, the availability of which varies from county to county. The USCCR notes that Harris County, made up of the ethnically diverse city of Houston, offers VDR sessions in both Spanish and English with regularity; however, Bexar County, which encompasses San Antonio, only offers training once a month during business hours, an inopportune time for working Texans. Likely as a result of this, Bexar County had roughly 1,000 VDRs registering voters in a city of 1.5 million during the 2016 election. Although Texas statutes require it, voter registration materials and VDR training sessions are not adequately provided in some counties, indicating a breakdown in enforcement of electoral law. Furthermore, The Nation observes that VDRs can only register potential voters from the county in which they were deputized, a problematic requirement considering that city limits typically stretch across state county lines. This, paired with a lack of standardized procedure from county to county, makes the large-scale voter registration campaigns seen in other parts of the country virtually impossible.
Abuse of Power
While the election law itself is problematic, the Texas government has also severely abused its authority in efforts to suppress registration numbers. In 2010, then-attorney general Abbott ordered the raid of Houston Votes, an organization dedicated to registering low-income voters in north Houston. State officers swarmed the group’s office in bulletproof vests and confiscated computers and documents. Abbott alleged that the group committed voter fraud, but following a year-long investigation, no charges were ever filed. Abbott’s office destroyed the computers and records it confiscated, and Houston Votes, having lost its funding during the controversy, was forced to close. Cases like this deter successful national organizations from working in Texas; the president of the now-defunct Project Vote –which registered over 5.5 million voters in two decades of operation– told The Nation that “there was no way that [Project Vote] could do voter-registration work [in Texas] without the risk of prosecution.” Texas Republican leaders learned that aggressive legal action, even without evidence of crime, drained the time and funding of registration groups, dissuading them from democratic participation.
In a similar vein, Texas officials have also attempted to purge voters from its electoral rolls. In 2012, two months before Election Day, state election officials sent over 80,000 notices to individuals who were “potentially deceased,” requiring them to submit proof they were alive within 30 days or be deregistered to vote. While there is no evidence the individuals were specifically targeted, NPR notes that people of color would face greater barriers to ensuring they remain registered. After four “deceased” voters sued, the State of Texas was forced to cease its efforts to purge voters, and the matter was put to rest – for the time being. In January of 2019, Texas Secretary of State David Whitley flagged nearly 100,000 registered voters under suspicions that they were not citizens, perhaps hoping to benefit off of the revived national discourse on voter fraud; indeed, President Donald Trump has repeatedly decried fraudulent voting despite the abundance of research that indicates its extreme rarity. Whitley was forced to rescind his list after it became clear it was issued in poor faith, but the case again exemplifies ignominious, self-serving conduct on the part of Texas’ so-called leaders. U.S. District Judge Fred Biery, who temporarily stayed Whitley’s purge in February, put it best in his scathing four-page opinion:
…perfectly legal naturalized Americans were burdened with what the Court finds to be ham-handed and threatening correspondence from the state, which did not politely ask for information but rather exemplifies the power of government to strike fear and anxiety and to intimidate the least powerful among us. No native born Americans were subjected to such treatment.
It suffices to say that Texas could use more public servants like Judge Biery.
Partisan Redistricting
Nationally, gerrymandering is a technique used by both Democrats and Republicans depending on who holds the state legislature at the time of redistricting. As the Texas House and Senate have long been in Republican control, it should be no surprise as to what party is overwhelmingly guilty. For decades, Section 5 of the VRA served as a degree of oversight on Texas Republican leaders as redistricting qualifies as a change in voting practice, but since its repeal in 2013, Republicans have been brash in their attempts to favorably redraw district lines. One case stands above the rest in terms of both controversy and consequence, both for Texas and the rest of the United States.
Abbott v. Perez
Although the rate of Latino population growth in Texas is considerable, it has not yet been fully reflected in political representation. Some of this may do with barriers in registration and identification, but as the plaintiffs in Abbott v. Perez would contest, redistricting is also responsible for the suppression of Latino voters.
Following the 2010 census, an increase in population provided Texas with four additional seats in the House of Representatives and required it to redraw a handful of congressional and statehouse districts. In 2011 and 2013, the Texas Legislature passed these new maps into law. However, after the ratification of the maps in 2011, minority rights groups filed lawsuits citing violations of Section 2 of the VRA – later, the lawsuits were amended to take into account the maps from 2013. Although the cases differed in detail, the underlying theme was that Texas legislators had intentionally drawn the maps to devalue or discount minority votes. In some cases, this meant deftly and maliciously swapping high-turnout Latino voters with low-turnout Latino voters – that way, a claim of race-based voter discrimination could be tossed out.
Much like the litigation surrounding S.B. 11, the series of cases was drawn out over several years. In 2017, the majority of both the 2011 and 2013 maps were deemed unconstitutional and in violation of Section 2, a resounding victory for voting rights activists. However, Texas appealed the decision regarding the 2013 maps, ultimately taking the case to the U.S. Supreme Court. Again, the justices fell in line by appointee party, and the court overturned the ruling. Writing for the dissent, Justice Sonia Sotomayor warned that the decision “comes at serious costs to our democracy.” She continued: “It means that, after years of litigation and undeniable proof of intentional discrimination, minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process.” Only after the next redistricting period will we discover if she is right – for now, Texas Republicans will reap the benefits of their customized constituencies.
Conclusion
By limiting opposition at the polls with voter ID requirements, restrictive registration laws, and partisan redistricting, Republicans have maintained firm control of state and federal positions in spite of an evolving constituency. Regarding voter ID laws, they outlasted the oversight measures outlined in Section 5 of the VRA and now possess the liberty to further heighten barriers at the polls. Only congressional action to restore Section 4’s formula could revive preclearance proceedings, and without hold of the Senate or White House, Democrats do not possess the capability of doing so. Republican ability to restrict voter registration in Texas was never in doubt provided its grounding in state law; in order to combat it, Democrats would have to continue waging exciting grassroots campaigns in the style of Beto O’Rourke, creating an extensive network of registered voters and volunteers. Lastly, the future of gerrymandering remains unsure, but as redistricting nears, and the Supreme Court turns ever redder, Democrats should anticipate an even sharper turn for the worst. The environment may be changing, but Republicans have rewritten the rules, ensuring their political preservation for the near future.