A recent court action against Texas is important, but it should not fool us into believing that existing laws are sufficient to protect voting rights. Indeed, the central lesson from Texas is that Congress must update the Voting Rights Act.
Last week, the Justice Department joined several civil rights groups in asking a federal court to require that Texas preclear its future voting changes with federal officials. The Department relied on Section three of the Voting Rights Act, which remains in force even after last month's Supreme Court decision. Section three allows a court to "bail in" to coverage areas with contemporary, intentional voting discrimination.
Contemporary Voting Discrimination in Texas
Significant discrimination persists in Texas, and the court should order Texas to preclear future voting changes.
Last August, for example, a federal court concluded that a congressional redistricting map was "enacted with discriminatory intent." In redrawing district maps, Texas politicians had excluded Latino and African-American lawmakers from the process and drew maps that diminished minority votes. For example, they split the minority community in Dallas-Fort Worth into four separate Anglo-controlled districts (including one "lightning-bolt" shaped district), and also packed minority voters into a handful of minority districts (one district was increased to 86 percent minority) to maximize the number of Anglo-controlled districts. Every predominately African-American district lost its congressional district office location and economic engines (e.g., sports arenas, hospitals, universities) -- but none of the predominately Anglo districts suffered such losses. The federal court concluded that "[t]he parties provided more evidence of discriminatory intent than we have space or need to address here."
Many more contemporary examples exist, especially at the local level. In Nueces County, Texas, for example, county officials responded to the rapidly growing Latino community, which has surpassed 56 percent of the county's population, by gerrymandering local election districts in 2011 to diminish Latino voting strength. And in Runnels County, Texas, a court ordered that every polling place have at least one bilingual poll worker (90 percent of Latino residents speak Spanish at home), but the county defied the court -- in November 2009, not one county polling place had a bilingual poll worker.
Covering Texas under preclearance would not be unfair "bullying" or "targeting" of the state. Since 2000, Texas has had more Justice Department objections to voting changes than any other state -- over 40 percent of which were issued during the Bush administration. No other state -- whether controlled by Republicans or Democrats -- has had a new statewide congressional map blocked by the Voting Rights Act in this decade.
Covering Texas would not interfere with "states rights." Texas politicians do not have the right to discriminate against American voters. Covering Texas also complies with last month's U.S. Supreme Court decision, which struck down another part of the Act because it referenced 1960s and '70s discrimination. Texas should be covered today not because of 1960s or '70s discrimination, but because of current discrimination.
Congress Must Update the Voting Rights Act
Events in Texas show that existing law is insufficient to protect voting rights and that Congress needs to update the Act.
Voting rights lawsuits are often ineffective tools to stop discrimination, especially in local elections. Voters in places such as Runnels County (population 11,500) often lack the thousands and sometimes millions of dollars necessary to bring a lawsuit to challenge an unfair change to bilingual election procedures or a racial gerrymander of county commission districts. Political operatives know that most discrimination will remain under-the-radar, as local elections are often nonpartisan and evade national media attention. Even when unfair changes are challenged in court, lawsuits can take years and often do not stop unfair voting rules before they are used in elections and harm voters.
While the federal court should require preclearance from Texas, Section three is insufficient to expand preclearance to many other states with recent voting rights violations. Currently, Section three requires a finding of intentional discrimination, and courts often find voting rights violations without explicitly affixing the stigma of intentional discrimination to an area. Further, jurisdictions often become fixated on denying that they engaged in intentional discrimination, which thwarts constructive agreements to enter into preclearance and avoid future problems. Efforts to establish or deny intentional discrimination also drive up litigation costs for voters, jurisdictions, and the Department of Justice.
The Department of Justice should continue to enforce voting laws on the books, but that is not enough. Republicans and Democrats in Congress must work together to update the Voting Rights Act to ensure voting is free, fair, and accessible for all Americans.
Spencer Overton is a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos. He is a former Principal Deputy Assistant Attorney General for Legal Policy at the U.S. Department of Justice. Follow him on Twitter @SpencerOverton.