Written By: Harry Arnold, CMC ’17
Electoral Importance of Texas
While most political gurus would scoff at the idea of Texas becoming a blue state, current demographic trends suggest that this traditional Republican stronghold may be under siege. Democratic strategists often salivate at the prospect of flipping the state of Texas, given that it carries a whopping 38 electoral votes, a number which is second only to California and which will likely grow in the coming decades. Losing such a large number of electoral votes would likely crush any Republican hopes of winning the White House. While such a statement may sound extreme, the political math is undeniably grim for Republicans. Mara Liasson of NPR News explains, “There are now 18 states plus the District of Columbia that voted Democratic in every one of the last six presidential elections. That gives the Democrats a comfortable base of 242 electoral votes out of the 270 needed to win the presidency. On the other hand, only 13 states with 102 electoral votes have gone Republican each of the last six elections.”Adding Texas’s 38 electoral votes to the Democratic total of 242 would essentially ensure a Republican defeat each year. This increasingly narrow road for Republican victory was evident in the 2012 election. Even if Obama had lost the traditionally crucial swing states of Florida, Ohio, and Virginia, he could have still hypothetically won.
So how do Democrats translate their electoral fantasies into reality? Given the plethora of factors that routinely affect the political process, the answer is not cut and dry. On one hand, logic holds that Democrats must simply be patient and allow demographic trends to take their course. For example, Hispanics, who historically vote Democratic, have increased as a share of the population at an exponential rate in Texas. Hispanics have constituted roughly 65% of the state’s population growth since the year 2000, and now compose 38% of the overall state population. Therefore, Democrats may be able to close the gap over time without significant effort. However, despite these recent statistics, Mitt Romney still won Texas in 2012 by a considerable margin of 16 points. The rise of Republican stars such as Chris Christie and Marco Rubio could widen this margin by potentially expanding the scope of the party’s traditional voter base. Given their youthful energy and less orthodox convictions, they possess the ability to not only attract voters from a wider spectrum, which would put more states into play for Republicans, but also safeguard an increasingly Hispanic Texas. Therefore, Democrats may have to take a more proactive approach in order to send Republicans into political oblivion anytime soon.
One school of thought suggests that simply increasing voter turnout among Hispanics could be a feasible solution for Democrats to gain Texas’ electoral votes. Battleground Texas, an organization with an abundance of cash and Obama campaign veterans, seeks to turn the Lone Star State blue by 2020. Former Obama field director Jim Messina asserts, “[i]f you look at the 2012 electorate only 38 percent of all eligible Hispanics turned out to vote. Compare that to Florida, where that number is 62 percent. If 62 percent of Hispanic voters who are eligible to vote turn out and vote in Texas, it’s a battleground state.” However, the problem with this logic is that it assumes Texas Republicans will simply allow this process to unfold without any resistance. Obviously, one major hindrance preventing Republicans from performing better among Hispanics is the party’s harsh stance on immigration reform. However, with the rise of conservative stars who hold more moderate positions on immigration, such as Marco Rubio and Jeb Bush, Hispanics may be more inclined to vote Republican in the future.
After all, Hispanics tend to be more socially conservative on issues such as abortion and gay marriage. As a result, Democrats would be prudent to take precautions to avoid political fallout similar to what transpired in the South during the second half of the 20th century. The South had traditionally been a Democratic stronghold for most of the 20th century. However, it was the Democratic Party’s embrace of various socially liberal stances in regards to issues such as civil rights and abortion that prompted the South to gravitate towards the Republican Party. If the Republicans were to shift their stance on immigration to a moderate position, then the Democratic Party would be in jeopardy of losing a key voting-bloc. Hispanics, a large number of whom are Catholic, might finally be able to express their disdain towards the socially liberal causes embraced by many Democrats. Without potential repercussions in terms of harsh immigration laws, an opportunity for Republicans to obtain a large number of Hispanic votes would arise.
Obama, the DOJ, and Voter ID Laws
Over the past several years, the Obama administration has pursued a variety of legal maneuvers that directly affect the electoral process in Texas. This year the Department of Justice sued the state of Texas over its voter ID law, which requires everyone to show a form of government identification at the polls. The DOJ asserts that the law violates Section 2 of the Voting Rights Act since it impedes the ability to vote based upon race. While there is evidence that certain groups such as minorities are less likely to have the proper forms of identification, this does not necessarily mean that the voter ID laws themselves are discriminatory. The law in Texas does not indicate that only certain groups must show identification, nor does Texas infringe upon certain individuals’ right to obtain this necessary identification. Furthermore, it is hard to make the argument that the 20-30 dollars required to purchase government identification is a significant financial barrier. An increasing number of states are deciding to enact voter ID laws, feeling that such parameters are grounded within the realm of common sense. Additionally, the overwhelmingly majority of Americans support voter ID laws. President Obama has repeatedly entered into legal battle with Republican states, citing racial discrimination as the rationale. To date the Obama administration has been embroiled in legal battles with Alabama, Texas, South Carolina and North Carolina over the states’ voter ID laws.
With the Supreme Court’s recent decision in Shelby County v. Holder, the Democrats have lost their primary weapon for browbeating traditionally Republican states over voter ID laws. The controversial Supreme Court decision struck down Section 4 and effectively neutered Section 5 of the Voting Rights Act, which required states with histories of racial discrimination to receive preclearance regarding changes to any electoral laws. In fact, it is this provision of the Voting Rights Act that the Obama administration initially used to challenge the Texas voter ID law, ultimately preventing the law’s implementation during the 2012 presidential campaign. While such a provision may seem unnecessary given the enormous strides in voting equality made in the past 50 years, a reason Chief Justice John Roberts cited in his majority opinion, it was nevertheless legally sound until Shelby v. Holder. However, with the recent Supreme Court decision, Obama and the DOJ are now forced to challenge the Texas voter ID law via Section 2 of the Voting Rights Act, claiming that the law discriminates based upon race. As a result, the burden of proof in regard to discrimination within electoral laws has now shifted from the states to the federal government. For instance, Texas was unable to implement its 2011 voter ID law and congressional redistricting maps since it was unable to prove in federal court that the laws were not discriminatory. However, without the requirement to undergo preclearance, states can enact voter ID laws freely. It is the federal government that now has to prove that a particular state’s voter ID law is discriminatory.
The Supreme Court & The Voting Rights Act
Over the past 30 years, the Supreme Court has maintained a balancing act regarding Section 2 of the Voting Rights Act. At times the Court has asserted that violations of Section 2 were only valid with proof of intentional discrimination. However, in other cases the Court has declared that elections laws with discriminatory effects, regardless of intention, constitute a violation of Section 2 of the Voting Rights Act. The state of Texas plans to utilize a key 1992 Supreme Court decision to ultimately defeat the Obama administration’s attempt to nullify their voter ID law under the Section 2 provisions. In 1992 the Supreme Court upheld a racially gerrymandered North Carolina congressional map with the logic that it was impossible to distinguish an attempt to protect incumbents from an attempt to empower a certain race during the redistricting process. This is due to the fact that certain races/ethnic groups typically vote overwhelmingly a particular way. In short, the court asserted that the while the congressional redistricting map did empower a certain race, in this case African-Americans (who vote Democrat by enormous margins), it could also be interpreted as an attempt to protect incumbents. Ironically, the coalition of liberal justices that generated the majority opinion in the North Carolina case may ultimately help conservatives in Texas prevail in their legal battle with the Department of Justice.
While requiring photo identification is not in itself discriminatory and may be simply a common sense precaution, Texas would be prudent to avoid defending its voter ID law on such claims. The reality is that there is strong statistical evidence demonstrating that minorities are less likely to possess the necessary forms of photo identification required for voting. Therefore, Obama and DOJ could possibly achieve a legal victory by asserting that the effect of the law is discriminatory. The bottom line is Texas should avoid drawing any attention to race, and frame their legal defense within the context of a political issue. Supreme Court precedents, such as those in the aforementioned North Carolina case, declare that defending incumbents is not unconstitutional. This is why it is vital for Democrats and Republicans alike to obtain control of as many state legislatures as possible in today’s political climate. Since it is the states that are in charge of redistricting after each census, the majority party is able to draw the new congressional maps in their favor without judicial interference. As a result, Texas, an overwhelmingly Republican state, can easily make the case that their voter ID law was merely an attempt to protect Republican incumbents and subsequently disadvantage Democrats. Obviously, discriminating against Democrats would entail discriminating against minorities since they overwhelmingly vote Democratic. However, with the aforementioned Supreme Court case involving North Carolina, the government would have to prove that the discrimination is of an invidious nature whose purpose was to target racial minorities.
It may seem odd that Texas would want to knowingly draw congressional maps that would suppress the Hispanic vote, a voting bloc of growing importance in the political process. Texas Republicans are pragmatic enough to realize that in the age of Obama, and possibly in the upcoming age of Clinton, now is not the best time to open up Republican congressional districts to Hispanics. Perhaps the best time to try to sway Hispanics into voting Republican would be if a transformative figure such as Jeb Bush or Marco Rubio were to be elected to the White House. However, such a delayed approach runs the risk of further solidifying Hispanics in Texas as a safe Democratic voting base. Regardless, given the current political calculus and monumental importance of Texas’s 38 el Rosen, supra. ectoral votes for Republicans, the state party establishment has decided now is not the time to take risks.
DOJ Hedges its Bets
Knowing that their legal argument in regard to the Section 2 violation in Texas is in great jeopardy of being rejected by the courts, the DOJ has invoked yet another section of the Voting Rights Act. A 2013 press release from the Justice Departments reads, “The complaint asks the court to prohibit Texas from enforcing the requirements of its law, and also requests that the court order bail-in relief under Section 3 of the Voting Rights Act. If granted, this would subject Texas to a new preclearance requirement.” Section 3 of the Voting Rights Act basically allows courts to add states to the list of states which require preclearance for enacting new election laws, the criteria for which is having recently engaged in discriminatory voting practices. Essentially, the DOJ is asking the courts to deem that the Shelby County v. Holder decision should not apply to the state of Texas. It seems almost illogical for the Obama administration to ask for another preclearance requirement when the Supreme Court just recently stripped such provisions from the Voting Rights Act. However, upon more subtle analysis, there is actually quite a bit of legal acumen present within this maneuver.
While the Shelby County v. Holder decision effectively rendered Sections 4 & 5 of the Voting Rights Act irrelevant, the Supreme Court technically only struck down Section 4. Section 4 was the formula used in order to determine which states require federal preclearance. It was declared unconstitutional primarily due to its antiquity and disregard for the social progress of the past 50 years. Chief Justice Roberts elaborated in his opinion, “Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare [Section 4] unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.” As a result, no states currently require preclearance since there is no formula existent to determine which states should require such a mandate. One remedy would be to simply pass a law to update the formula; however, given the Republican control of the House of Representatives, at least for the time being, such a measure is practically impossible. Since Section 5, which establishes the preclearance mandate, is still constitutional, the DOJ could theoretically subject Texas to preclearance once again via the Section 3 route. However, there are several barriers that will likely render this effort futile.
Potential Supreme Court Showdown?
For all intents and purposes, one should assume that this lawsuit will be heard by the Supreme Court, a likely possibility considering the national implications involved. Historically, the Supreme Court has been very apprehensive about legislating directly from the bench. If the Court were to add Texas to the list of states that require preclearance via the Section 3 provision, it would be effectively establishing new criteria for the formula previously struck down in the Shelby County v. Holder case. Given the current makeup of the Court, which is currently composed of a 5-4 conservative majority, such a decision is unlikely. However, the Court, wishing to intervene as little as possible, could reach a decision that might nullify the Texas voter ID law while still stopping short of placing Texas on the preclearance list. Even this outcome is unlikely however, since courts have historically required substantial proof showing intentional discrimination before placing a state on the preclearance list. As a result of its ability to claim it is redistricting solely for political party-related ends, Texas will likely be able to deflect any arguments involving discrimination against minorities. This is why the Section 3 provision has only been successfully used against two states, Arkansas and New Mexico. Moreover, the Section 3 prevision currently applies to only three counties in the entire country.
Perhaps Obama and the DOJ’s best chance for legal victory is similar to what happened with the 2012 Supreme Court Obamacare decision upholding the individual mandate. Perhaps Chief Justice John Roberts, seeing the backlash over the Shelby County v. Holder decision, would change his position and vote with the liberal wing. Various Court insiders have asserted that this is what transpired during the monumental 2012 healthcare decision. After all, Roberts did essentially redefine the individual mandate as a tax rather than a penalty, a terminology Obama and the Democrats shied away from throughout the entire legislative process. Such an inconsistency would be indicative of Roberts changing his position midway through the opinion writing process as a result of potential backlash or fear of a tarnished legacy (the Roberts Court would have been infamous for nullifying Obama’s signature piece of legislation). However, the difference with this case is that the Court’s decision would not have as far-reaching impacts. With the healthcare decision, striking down the individual mandate would have effectively struck at the heart of the entire law. The Texas voter ID law case is different, because the Court’s decision would more than likely be unique only to Texas and not to the entire country. Therefore, the state of Texas can likely take solace in the old adage that lightning doesn’t strike twice in the same place.
Obama and the DOJ Doubles Down
Another legal maneuver Obama and the DOJ have pursued is joining a current lawsuit against Texas over its 2011 congressional redistricting maps, claiming that Hispanics are not adequately represented. In 2012 these new congressional districts were prevented from going into effect as a result of a preclearance hearing that found that Texas did not prove the maps were not discriminatory. As a result, a federal court in San Antonio was responsible for drawing the maps for the 2012 election. Like the DOJ’s lawsuit against Texas over its voter ID law, this lawsuit is seeking to “bail in” Texas as a state that requires preclearance hearings. Furthermore, like Obama and the DOJ, the plaintiffs are forced to utilize Sections 2 & 3 of the Voting Rights Act as the premise for their lawsuit. They assert that Texas has recently exhibited discriminatory practices as evident in the result of the aforementioned 2012 preclearance hearing, and thus can be “bailed in” via Section 3. On the other hand, Texas points to how in 2013 the Supreme Court vacated the 2012 preclearance hearing due to its ruling in the Shelby County v. Holder decision; Texas asserts that the preclearance hearing therefore cannot be used as evidence of intentional discrimination. As a result, the redistricting case has been sent back to the lower courts for adjudication. While it is possible that a lower court could find that Texas is in violation of Section 2 and/or should be subject to preclearance under Section 3, such rulings could very well be undone in the Supreme Court. However, one slight advantage for the plaintiffs is their ability to utilize a section of the Voting Rights Act that was not struck down, a provision governing majority-minority districts. At the same time, the legal logic involving discrimination against a political party rather than race could play in Texas’s favor.
Remember the Alamo
The Obama administration’s legal efforts against Texas’ voter ID law and congressional redistricting maps unequivocally possess the potential to supplement the ongoing effort to turn the state into a Democratic stronghold. Whether or not a desire to support such grassroots efforts is a driving force of the DOJ’s lawsuits is a question for political pundits. However, by seeking to nullify the state’s voter ID law and enact congressional maps more favorable to Democrats, Obama is clearly seeking to empower Hispanic voters in Texas. While certainly a noteworthy effort, the Republican Party in Texas is probably too strong and too influential to let a couple of lawsuits dismantle their control of the state. The bottom line is that Texas still votes Republican in presidential elections by margins so considerable that even the adoption of minority-friendly congressional districts or the repeal of voter ID laws would have little practical effect. Hence, even if Texas were once again subject to preclearance hearings via Section 3 it probably wouldn’t have an impact anytime soon. Furthermore, Texas can utilize various legal precedents such as the Shelby County v. Holder decision in their defense.
With Republicans controlling a majority of state legislatures, it is very likely that more and more states will enact some form of a voter ID law. These efforts could very well extend to blue states, sending the Obama administration scrambling to put out fires across the country. In fact, Pennsylvania, which has voted Democratic the past several presidential elections, is even pursuing a voter ID law. While Obama and the DOJ may think that their slew of lawsuits and legal maneuvers over electoral practices are enfranchising minorities and are pursuant to the ideals of the Constitution, they could very well be having an adverse effect on the realization of their ideals. With each lawsuit, the administration provides the Supreme Court with another opportunity to strike down key parts of the Voting Rights Act (a lesson learned the hard way in Shelby County v. Holder), with Section 3 being a potential candidate. Perhaps President Obama has spent a little too much time in Washington to realize that it can be perilous to mess with Texas.
 Mara Liasson, Will Texas Become a Presidential Battleground?, 2013 NPR All Things Considered, July 01, 2013. <http://www.npr.org/blogs/itsallpolitics/2013/07/01/197692543/will-texas-become-a-presidential-battleground>.
 Rick Jervis, Hispanics Guide Huge Growth in Texas, 2011 U.S. Today, Feb. 23, 2011 at (2011), <http://usatoday30.usatoday.com/news/nation/census/2011-02-17-texas-census_N.htm>.
 2012 Presidential Election, 2012 Politico, Nov. 29, 2012 at (2012), <http://www.politico.com/2012-election/map/#/President/2012/>.
 Liasson, supra.
 Kevin Johnson & Richard Wolf, Justice Department Sues Texas Over New Voter ID Law, 2013 U.S. Today, Aug. 22, 2013 at (2013), <http://www.usatoday.com/story/news/politics/2013/08/22/voting-rights-texas-photo-id-justice-department-lawsuit/2685349/>.
 Jordan Fabian, Department of Justice Sues Texas Over Voter ID Law, 2013 Fusion/ABC, Aug. 22, 2013 at (2013), <http://fusion.net/leadership/story/department-justice-sues-texas-voter-id-law-12311>
 Jeffrey Rosen, Eric Holder’s Suit Against Texas Gives the Supreme Court a Chance to Gut Even More of the Voting Rights Act, 2013 New Republic, Sept. 01, 2013 at (2013), <http://www.newrepublic.com/article/114524/eric-holder-texas-suit-supreme-court-might-gut-more-voting-rights>.
 Sari Horwitz, Justice Department Bars Texas Voter ID Law, 2012 The Wash. Post, Mar. 12, 2012 at (2012), <http://articles.washingtonpost.com/2012-03-12/politics/35450319_1_voter-id-laws-library-card-or-board-combat-voter-fraud>.
 Ryan Reilly, Mike Sacks & Sabrina Siddiqui, Voting Rights Act Section 4 Struck Down, 2013 The Huffington Post, June 25. <http://www.huffingtonpost.com/2013/06/25/voting-rights-act-supreme-court_n_3429810.html>.
 Enrique Rangel, Federal Court Strikes Down Texas’ Redistricting Plans, 2012 Lubbock Avalanche-Journal, Aug. 29, 2012 at (2012), <http://lubbockonline.com/texas/2012-08-28/federal-court-strikes-down-texas-redistricting-plans#.UnC_d_kgd8F>.
 Rosen, supra.
 Justice Department to File New Lawsuit Against State of Texas Over Voter I.D. Law, 2013 Department of Justice Office of Public Affairs, Aug. 22, 2013. <http://www.justice.gov/opa/pr/2013/August/13-ag-952.html>.
 Rosen, supra.
 Riley, Sacks, Siddiqui, supra.
 Rosen, supra.
 Jane Crawford, Roberts Switched View to Uphold Healthcare Law, 2012 CBS – Face the Nation, July 01, 2012, <http://www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/>.
 Fabian, supra.
 Rangel, supra.
 Ross Ramsey, Following Supreme Court Decision, the Texas Redistricting Battle Returns to San Antonio Courtroom, 2013 Houston Chronicle, July 01, 2013, <http://blog.chron.com/txpotomac/2013/07/following-supreme-court-decision-the-texas-redistricting-battle-returns-to-san-antonio-courtroom>/.
 Aaron Blake, Supreme Court Vacates Texas Voter ID and Redistricting Rulings, 2013 The Washington Post, June 27, 2013, <http://www.washingtonpost.com/blogs/post-politics/wp/2013/06/27/supreme-court-vacates-texas-voter-id-and-redistricting-rulings/>.
 Ramsey, supra.
 Blake, supra.