AUSTIN, TX — In the coming months, a federal appellate court in Texas will rule on whether the Justice Department can continue to have a say about how the country’s second most populous state handles that most basic right of a citizenry: voting.
But the case isn’t likely to end there. In the wake of the US Supreme Court’s far-reaching ruling on the Voting Rights Act earlier this year, top law-enforcement officials in Texas and Washington have staked out sharply different positions about how far federal authority extends, and how to interpret what the court said. Many observers anticipate the dispute will make it back to the top court, setting the stage for another historic ruling. The fate of redistricting plans, voter ID laws, and more hangs in the balance.
This is admittedly arcane material, and it can be a story only a lawyer could love. But it’s also consequential, especially since the federal government’s argument for continued oversight rests on claims that discrimination in election law is not just a historical artifact but a present-day reality. In essence, Texas—perhaps joined by North Carolina—is now ground zero in a legal and political struggle over the future application of historic voting rights laws.
But you might not get a feel for the urgency of the moment by reading recent coverage in the Texas press, which has veered more toward dutiful than enterprising. PolitiFact Texas has done its usual good job parsing fact from fiction in politicians’ statements, and there have been some recent helpful explanatory pieces. For the most part, though, energetic coverage and discussion of what’s at stake has come from elsewhere. (Earlier this summer, CJR’s Mariah Blake rounded up some of the best resources and reporting on this topic.)
Legal process stories are challenging, but there are openings for Texas journalists to do more here—both in terms of explaining why the argument matters, and in examining how well competing claims stand up to scrutiny. What follows is a pocket guide to what’s happening and how it has or hasn’t been covered so far.
Discriminatory redistricting or just partisan gerrymandering?
Here’s the backstory, in brief: Texas was one of nine states that was required under the Voting Rights Act to seek “preclearance” from the federal government for changes to its election laws. In June, the Supreme Court invalidated the act’s Section 4, which spelled out which states were covered by the law, on the grounds that the formula did not reflect contemporary circumstances. But several civil-rights groups brought a lawsuit asking federal courts to reimpose the preclearance requirement for Texas, arguing that the state qualifies under a separate section of the act because of current-day discrimination. And in late July, in a move that signaled the latest high-stakes battle between the state and the feds, US Attorney General Eric Holder announced that the Justice Department was joining the suit. Key to the plaintiffs’ arguments is the legislative map, since revised, passed in the state’s 2011 redistricting. A court ruling blocking that map said that the parties had “provided more evidence of discriminatory intent than we have space, or need, to address here.” (For a closer look at the court’s conclusions about the map, see this clear ProPublica explainer.)
The state’s reply, filed by Texas Attorney General Greg Abbott in early August, upped the ante further. Abbott’s brief denied that the maps were discriminatory, and said they were simply motivated by Republican lawmakers’ desire to lock in an advantage for the GOP. But it also argued that under the Supreme Court’s ruling this summer, preclearance is now only allowed for places that have engaged in “rampant, widespread, recalcitrant discrimination,” and it would be absurd to accuse Texas of such “1960s style” practices.
This amounts to a claim that the Supreme Court has, for practical purposes, already thrown out not just the preclearance formula but the concept of preclearance itself—and it’s the biggest reason why some observers expect the case to get back to the top court. Abbott’s brief, perhaps unsurprisingly, attracted critical coverage from some liberal outlets. But it was also flagged as momentous by election law experts. At SCOTUSblog, Lyle Denniston wrote: “The state thus is attempting to turn the new courthouse skirmish over a little-used section of the 1965 law… into a constitutional battle with high stakes for the future of voting rights.” Rick Hasen of Election Law Blog and Michael Li, who writes the Texas Redistricting & Election Law Tumblr, made similar points. Even The Economist took note.
It wasn’t much covered, though, in the Texas press. The San Antonio Express-News ran an angry editorial focused on Abbott’s brazen admissions of partisan gerrymandering, which it called “ethically corrupt.” But otherwise the development passed mostly without notice—even though editorial boards and newsrooms around the state had covered Holder’s move.
Obviously, general-interest newspapers aren’t in the habit of writing about every development in even a high-stakes legal case. And lately there’s been other news involving some of the same characters—like Holder and Abbott joining forces to oppose the American Airlines-US Airways merger—that’s understandably at the top of the news agenda in Texas.
But given the raised eyebrows among those closely following the case, Abbott’s latest maneuver, and what it might mean both in Texas and across the country, merits some closer attention.
That’s not the extent of journalistic opportunity on the redistricting front. There’s a related opening here for some analysis and storytelling about how representation in Congress and the statehouse has changed, and what the effects have been for voters—Hispanics, African-Americans, and Anglos alike. For example, what are the consequences—not just in terms of the balance of partisan power, but in terms of what issues get heard—of carving up Austin, now the 11th largest city in the US, into six congressional districts? Any news organization, big or small, can tackle that story in its community. And this side of the story becomes less about the details of legal challenges than about people, history, and power.
Finding the facts beneath the voter ID debate
Redistricting isn’t the only front in the fight between Texas and Washington. As soon as the Supreme Court’s ruling on the VRA came down, Abbott announced it that the state’s voter ID law, which had been blocked by a federal court, would take effect immediately. There’s been some ongoing legal sparring over whether the state can do that. And just hours before this post was published, the Justice Department announced it was filing a new suit to block the voter ID law, arguing that it was racially discriminatory and that Texas should be subjected to preclearance on those grounds.
There’s also an interesting political wrinkle to the fight, with local Democrats from the Texas’s urban centers lining up against the state law. As Brandon Formby of the Morning News reported, commissioners in Dallas County voted this week to join the suit against the state.
But this part of the story is less about tracking competing arguments than trying to find hard facts—namely, numbers. How widespread is the sort of voter fraud that an ID program might stop? And how many people might actually be burdened, or even disenfranchised, by an ID requirement?
So here’s a stab at some facts. Nationally, about 11 percent of all Americans don’t carry a state-issued ID card, according to the Brennan Center for Justice, a legal research and advocacy center at New York University’s School of Law. But about 25 percent of African-Americans don’t carry one. People without state-issued cards range from college students who carry only a college ID to older people who no longer drive. Federal officials say that state data from 2011 and 2012 finds between about 600,000 and about 800,000 registered voters who do not have a state-issued ID, and about 30 to 40 percent of those voters are Hispanic.
So a lot of people—including a lot of registered voters, and disproportionately African-Americans and Hispanics—don’t have state-issued IDs. The initial federal court ruling found it was “virtually certain” that the law would disproportionately burden minority voters. But proponents say the requirement is no big deal, because the state law says that anyone can get a free ID from the Department of Public Safety (though copies of the required underlying documentation are generally not free). How many of those cards have been issued so far? About six, the Texas Tribune’s enterprising Julián Aguilar reported this month, though what that scant number signifies is not entirely clear yet.
Meanwhile, how bad is the scourge of in-person voter fraud, offered as the justification for the voter ID program? In a press release, Abbott claimed more than 50 election fraud convictions between 2002 and 2012, in a state of 26 million people. PolitiFact Texas rated that claim “half-true,” and noted that “only two cases are described as ‘voter impersonation’ on the list.” A separate database maintained by the News21 project tallies 104 cases of alleged election fraud in the state since 2000, only three of them involving voter impersonation.
But that’s just individual cases filed and convictions won. How about Abbot’s claim that the state proved in court that more than 200 ballots were cast in the name of dead voters in the 2012 primary elections? PolitiFact looked into that one and found it “mostly false.” More like four solid cases.
That’s good work, and maintaining this kind of scrutiny of both sides’ arguments will be important going forward. But here’s hoping that Texas journalists also find some time to ask why the voter ID debate sometimes seems to be the only elections issue on the agenda. A study by the Pew Charitable Trusts found that the state’s overall “elections performance” in recent cycles was middling, but it was marked by low registration, low turnout, and a high rate of rejected registrations. What are state officials doing about those issues? Are they doing anything at all?
It’s about politics, people
The context for these fights, of course—as Abbott’s brief makes clear—is the partisan struggle for political power. Republicans have astutely controlled statewide politics for 20 years, built not only upon the collapse of the state Democratic Party but the shrewd vision of George W. Bush, Karl Rove, and Rick Perry. But that era may be drawing to an end. The growth of the Hispanic population, the liberalization of the state’s largest cities, the influx of outsiders to Texas don’t guarantee a dramatic shift in power, but they do herald at least a more competitive era. As every political reporter knows, the sparring over redistricting, voter ID, and the rest are fights to set the rules of that competition.
The challenge is to connect that savvy look at the big picture to the important and not always sexy details of election administration. The struggle plays out in the subtlest of minutiae, but the larger context is about ambition, power, and control. And Texas is ground zero.