The state of Texas asked a federal court last week to read the Voting Rights Act virtually out of existence. In a motion seeking to dismiss a lawsuit challenging a Texas voter suppression law, the state reads the Voting Rights Act so narrowly that it would render what remains of the law after the Supreme Court gutted a key provision last June almost entirely useless. In the process, Texas ignores both the plain language of the law and an historic legislative battle which leaves little doubt that Texas is wrong.
Broadly speaking, federal civil rights law permits two kinds of suits. “Disparate treatment” suits probe whether a defendant acted with racist intent. For this reason, these suits are notoriously difficult to win, especially in the voting rights context. Among other things, modern day lawmakers typically do not circulate memos to each other openly admitting that they support a law because it will prevent African Americans or Latinos from voting.
“Disparate impact” suits, by contrast, allow courts to infer discrimination from the fact that a law has an outsized negative impact on a minority group. Thus, in large part because Texas’ voter ID law is particularly likely to disenfranchise voters of color, it should be struck by federal courts under the Voting Rights Act.
In their motion, however, Texas does not simply claim that its voter ID law survives a disparate impact suit — it claims that these suits should cease to exist altogether in the voting rights context. As the motion incorrectly claims, the text of the Voting Rights Act “does not prohibit laws that merely have a disparate impact on racial or language minorities.”
This is not just false, it is egregiously false. The Voting Rights Act explicitly allows a plaintiff to prevail if “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [racial minorities] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Moreover, the law does not simply forbid acts that are intended to prevent minorities from voting, it also forbids any voting regime that “results in a denial or abridgement” of voters of color’s right to vote. Texas’ motion ignores the plain language of the law in an attempt to eliminate the most effective remaining way to prevent race discrimination in voting.
Texas is also fighting a battle that’s already been decided against them. In a 1980 case called Mobile v. Bolden the Supreme Court interpreted the Voting Rights Act in the narrow way Texas suggests in its motion. Two years later, President Ronald Reagan signed legislation that effectively overturned Bolden by explicitly authorizing disparate impact suits under the Voting Rights Act. Now, however, Texas asks the courts to pretend like Reagan never signed this law.
There is some risk that the courts will take Texas up on this offer. Justice Anthony Kennedy, in particular, has shown some uncomfort with the idea of disparate impact suits in the voting rights context. If Texas ultimately succeeds in dismantling this key prong of the Voting Rights Act, however, it could effectively neuter what remains of the law. Prior to the 1980s, the provision of the Voting Rights Act allowing lawsuits against states engaged in voter discrimination “had never been successfully used as the basis for litigation.” Texas’ legal theory would take the law back to the day when this was the case.
(HT: Josh Blackman)