The humorist and author Mary Lasswell once wrote that “God made Texas on his day off, for pure entertainment,” because you can find a little bit of everything — and a lot of nothing — here.
Texas has embarked upon a campaign to make it more difficult for registered voters to cast their ballots.
That’s a fitting epitaph for the ongoing battle over voting rights in the nation’s second-largest state, which has taken a turn toward the surreal over the past two weeks. But for as laughable as the apparent implosion of Texas Republicans’ voter suppression efforts might be, they’re also a sobering reminder of the continuing impact of the U.S. Supreme Court’s evisceration of the federal Voting Rights Act in 2013.
Let’s start at the beginning. Like a handful of other states in which Republicans control all three branches of government, Texas has embarked upon a campaign to make it more difficult for registered voters to cast their ballots — at least putatively in response to never-substantiated claims about fraud and other malfeasance during the 2020 election (in which, it should be noted, former President Donald Trump won Texas by over 630,000 votes).
At the forefront of that campaign is the misleadingly named Election Integrity Protection Act, or, as it’s referred to locally, “SB7.” The Texas Senate passed SB7 shortly after 6:00 a.m. on the Sunday of Memorial Day weekend, after voting on party lines to expedite consideration of the measure and to allow for last-minute addition of un-debated amendments. Among other things, the bill would:
- Ban drive-thru voting.
- Bar polling places from being open 24 hours a day.
- Ban voting on Sundays before 1:00 p.m.
- Further restrict who can vote by mail (in a state in which only a small number of voters may vote by mail now).
- Add an additional identification requirement for those legally eligible to vote by mail.
- Make it easier for a judge to overturn an election based upon claims of fraud — even if those claims wouldn’t necessarily have affected the result.
Democrats in the Texas House managed to block final passage of the bill by staging a walk-out — which deprived the lower chamber of a quorum on the last day of its scheduled legislative session (the Texas legislature is, believe it or not, only a part-time concern). Because of the timing, the move effectively killed the bill, at least for the moment.
Something strange has happened in the intervening fortnight: Some Republican members of the Texas legislature appear to be having second thoughts.
But Governor Abbott, who, in response, has threatened to defund the legislature by vetoing its budget (never mind the state constitutional questions such a move would provoke), has also suggested that he’ll add the bill to matters he directs the legislature to take up in a “special session” that he’s likely to call for later this summer. In the immediate aftermath of the Democratic walkout, then, it seemed like only a matter of time before SB7 would make its way to the Governor’s desk for signature.
But something strange has happened in the intervening fortnight: Some Republican members of the Texas legislature appear to be having second thoughts. The ban on Sunday morning voting was chalked up to a “typo.” The provision allowing judges more easily to overturn election results has since been described by one of the bill’s sponsors (who claimed not to know who had added that provision to the bill) as “horrendous.” And the list goes on. Even the staunchest defenders of the bill have had trouble defending its most controversial provisions now that they’ve been subjected to meaningful (which is to say, any) public scrutiny.
There are, of course, two possible explanations for these lawmakers’ after-the-fact recriminations: They’re either telling the truth (and so were about to railroad through significant voting restrictions of which they were unaware); or they’re not (and are unwilling to defend provisions publicly that they were all too happy to support privately).
We may never know which is more accurate. But the larger point here is that this is no way to run a railroad — and it’s certainly no way for the nation’s second-largest state to revise its election laws. Indeed, before 2013, most of this nonsense would not have been possible. Under the Voting Rights Act of 1965, Texas was a “preclearance” jurisdiction. In English, that meant that, every time the state wanted to change its election laws, it needed the changes to be “pre-cleared” by the Justice Department — to ensure that the changes were not an effort to unlawfully or unconstitutionally deprive individuals of their right to vote. If the Justice Department rejected proposed changes, states could challenge that decision in federal court. But the preclearance regime exerted powerful leverage on states to avoid such mischief when it came to rewriting the rules for voting, since they would never get the last word. In 2013, though, the Supreme Court, by a 5-4 vote, effectively gutted the Voting Rights Act when it held that the formula the statute used for identifying “preclearance” jurisdictions was unconstitutional — at least in part because it had not been updated in years and in part because, by treating states differently, it deprived them of their “equal sovereignty” under the Constitution. Although the majority opinion in Shelby County, written by Chief Justice John Roberts, invited Congress to “fix” the coverage formula to put the preclearance regime back on firm constitutional footing, it did so knowing that political obstacles — especially the shadow of the filibuster in the Senate — rendered such reform a dead-letter. And so, here in 2021, while the filibuster continues to prevent the Senate from taking up federal election reforms passed by the House, the mischief that the VRA was enacted to prevent is, instead, flourishing — as states enact, or come perilously close to enacting, voting restrictions that their supporters refuse to publicly defend. For 50 years, the Voting Rights Act made it much harder for state legislatures to play such transparent partisan politics with our right to vote. Until and unless Congress restores it, though, it’s up to us — the voters — to hold our state representatives responsible for using the fiction of election abuses as justification for the suppression of votes that are perfectly legal, but that they just don’t like.
Steve Vladeck
Steve Vladeck is a professor of law at Georgetown Law, whose teaching and research focus on federal jurisdiction, constitutional law and national security law. He is co-editor-in-chief of the Just Security blog (@just_security) and co-host of "The National Security Law Podcast" (@nslpodcast). 
