Within the past week, the U.S. Supreme Court refused to grant certiori to hear an appeal of a decision upholding Wisconsin’s appalling voter i.d. law, (Frank v. Walker) and just remanded two Alabama redistricting cases (Alabama Black Legislative Caucus et al. v. Alabama et al., linked with Alabama Democratic Conference et al., v. Alabama et al.) back to the lower courts on a 5-4 decision holding that the state legislature could not justify “packing” African-American voters into fewer districts on the basis that it was compelled to do so in order to comply with Section 5 of the Voting Rights Act.
Superficially, this seemed to be a bit of give-and-take when it came to voting rights, although the cases weren’t directly comparable on the facts or issues.
Answer: Not much either way. The Texas Legislature (bless its aggregated shriveled dignity) overreached far more aggressively on both voter i.d. laws and on redistricting than did any of the other states (with the possible exception of South Carolina, which seems to be giving us a run for the money on efforts to cement the title of “most regressed” when it comes to voting rights).
As a consequence, the Texas lawsuits present voting rights advocates with an interesting set of tactical choices. On the one hand, the State has been such a bad actor that it is absolutely imperative that its voter i.d. and 2013 redistricting be struck down in the Supreme Court as unconstitutional, and that its future actions be subjected to “opt-in” preclearance under Section 3 of the Voting Rights Act.
On the other hand, because Texas pushed the envelope on bad legislative acts, the State provided some cover for other states involved in similar lawsuits. It’s sometimes handy to be able to point to another entity and say, “Well, at least our state government didn’t try something on the order of what Texas did!”
In the case of the Wisconsin litigation, the plaintiffs lacked sufficient evidence of malicious racial intent to invoke key provisions of the Voting Rights Act. In the case of the Alabama litigation, the plaintiffs prevailed only in knocking back a couple of fairly tenuous legal arguments justifying racial gerrymandering.
In the Texas litigation, the stakes are much higher, and the evidence for racial animus is much stronger. As for me, I just hope that the Supreme Court fixes the Texas mistakes. As much as I might hope that Justice Roberts would have a change of heart regarding the importance of the Voting Rights Act for the country as a whole, I really just want some acknowledgment that there are fact patterns so egregious that they can embarrass even a few hard-core states-rightists.