Texas Has to Chill With War on Voting Rights Act

Mar 28, 2012

Challenging the Department of Justice’s rejection of Texas’s proposed photo voter ID laws wasn’t enough. No, Texas had to challenge the Voting Rights Act itself, particularly Section 5, which grants the federal government special powers to oversee election law changes in states and counties that have troublesome histories with voter discrimination. The state of Texas preemptively challenged the constitutionality of Section 5, meaning they filed a lawsuit to have it overturned before they even heard back from DOJ about whether their voter ID law would be cleared. This is a clear frontal attack on the keystone of one of the most important pieces of civil rights legislation achieved in the United States.

A three-judge panel determined that it would consider Texas’ challenge of Section 5 of the Voting Rights Act only after the lawsuit concerning their photo voter ID law is reconciled. But Texas isn’t playing nice in that lawsuit. Last week, the state’s attorney general Greg Abbott opposed releasing 12 state legislators — sponsors of the voter ID bill — for depositions requested by DOJ’s civil rights division attorneys. DOJ has requested the depositions, along with any written communications between state legislators about the bill, so that they can investigate whether there was any discriminatory intent behind creating it. Abbott is stiff-arming DOJ though saying in a court filing:

"If litigants can depose individual legislators and traipse through every communication of those legislators simply by alleging that a state law was enacted with an impermissible purpose, then state lawmakers will be chilled from engaging in the communications necessary to perform their jobs properly."

The bold is mine. I want to point out that Abbott’s statement shows that he recognizes what suppression means. His point about the chill effect that a DOJ investigation would bring is his attempt to say that such examinations would suppress job performance by making legislators scared to candidly discuss legislation before creating laws, which is their primary job.

This is a weak argument. Any state legislator knows that they are not so above federal laws that their communications can’t be scrutinized. Such scrutiny doesn’t even need to come from the Department of Justice; it can come from any citizen who files a freedom of information act request if they have the same questions or concerns about a questionable law. It’s this kind of transparency and accountability that is worked into government to ensure that it doesn’t do something like, I don’t know, return to black codes and Jim Crow laws of the past.

But I’d like to also point out that the same "chill effect" that Abbot is concerned about is the same chill that protectors of voting rights are concerned about when it comes to photo voter ID law, especially in Texas. The major concern is that it’s hard enough to get people out to the polls, and there are regularly a number of factors that, for whatever reason, lead people to elect to stay home rather than vote on election day. Those factors could be a misinformation and confusion around election rules or even a bad weather day. For Latino-Americans, there can be fear around whether the level of exposure and vulnerability involved with obtaining or even showing an ID card will lead to a false arrest, or worst a deportation — this is especially true in states with hostile laws against immigrants.

In South Carolina, where DOJ civil rights attorneys are also entangled with the state in lawsuits around their photo voter ID laws, the League of Women voters is asking to join the ACLU in a legal challenge to the state’s proposed law. As stated in their court filing:

"Because the photo identification requirement chills and in some cases prevents voting, it is directly at odds with the League’s primary mission of facilitating civic participation."

Again, bold is mine. The criteria for photo voter IDs in states like Texas and South Carolina are classic definitions of a "chill effect," which anyone who is truly worried about the integrity of elections should be against. If Abbott and Texas legislators don’t want to be subjected to that chill effect, then they shouldn’t subject their voters to it.