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DOJ Sues Texas Over Its New Voting Restrictions

Here’s a look inside the lawsuit—and a look at the stakes.
November 8, 2021
DOJ Sues Texas Over Its New Voting Restrictions
WASHINGTON, DC - JULY 20: Texas State Rep. Barbara Gervin-Hawkins (D-120), joined by fellow Democratic Texas state representatives, speaks at a press conference on Texas Gov. Greg Abbott and the group's meetings with federal lawmakers on voting rights, on July 20, 2021 in Washington, DC. Members of the Texas House Democratic Caucus continue to lobby for voting rights reform in Washington, DC after leaving Texas to block a voting restrictions bill by denying a Republican quorum. (Photo by Kevin Dietsch/Getty Images)

Last Thursday, just three days after the Supreme Court heard arguments around the Department of Justice’s suit to stop implementation of SB 8, Texas’s controversial abortion law, the DOJ sued Texas again—this time over SB 1, the law so draconian in its restrictions on voting that Democratic members of the state legislature resorted to hiding out in Washington, D.C. this summer in a futile effort to stall its passage.

What DOJ’s complaint reveals, once again, is that the Texas legislature is hellbent on pushing back against established individual rights of some of the most vulnerable in society. According to DOJ, S.B. 1’s targets include “voters with limited English proficiency, voters with disabilities, elderly voters, members of the military deployed away from home, and American citizens residing outside of the country.”

The lawsuit is filed under a relatively inconspicuous section of the Voting Rights Act, the landmark 1965 legislation designed to enforce the Fifteenth Amendment to the Constitution. In the 95 years since the amendment’s ratification, Jim Crow measures hamstrung the gains the amendment was supposed to have secured for black men. (Women couldn’t vote until 1920.) Although the Supreme Court had ruled in 1915 that grandfather clauses—permitting those whose grandfathers could vote before the Civil War to vote, thereby barring black men—were unconstitutional, other segregationist restrictions were still widely in place in the South by the mid-twentieth century, including poll taxes and literacy tests. The suppressive effect of those measures was so great that the portion of black men and women registered to vote in the South reached a nadir of just 3 percent in 1940. That figure rose considerably over the next quarter century, so that by 1964 it stood at 43 percent, but it was the Voting Rights Act that decisively put an end to the Jim Crow voting restrictions.

Several parts of the act have made news as of late, with congressional Republicans filibustering the John Lewis Voting Rights Act last week. That bill would reinstall Section 5 of the statute, which was killed by the Supreme Court in 2013—despite its having been renewed unanimously by a vastly more functional Congress in 2006. Section 5 put DOJ on the job of reviewing potentially suppressive voting laws before they took effect. In striking it down, Shelby County v. Holder ushered in a new era of state legislative efforts to suppress the vote, prompting the late Justice Ruth Bader Ginsburg to bemoan in dissent that the majority had snubbed the will of Congress, which had “determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.” The scourge continues.

A different part of the Voting Rights Act—Section 2—was the subject of the Supreme Court’s disturbing 2021 decision in Brnovich v. Democratic National Committee, in which a 6-3 conservative majority injected a multi-factor test into the act to make it harder for voters to successfully claim “a denial or abridgement of the right of any citizen of the United States to vote on account of race or color,” activity that Congress expressly forbid. Although the Court did not entirely gut Section 2—indeed, over the summer DOJ sued Georgia under Section 2 over that state’s voting restrictions—the Brnovich decision made it much more difficult to use that section to challenge discriminatory voting laws.

Enter Section 208, which DOJ cites in its latest lawsuit. It states: “Any voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter’s choice.” DOJ’s website lists a number of Section 208 lawsuits brought against states, including Texas, for allegedly refusing to offer eligible voters assistance, but the most recent stretches back to 2009—over a decade ago—suggesting that the DOJ has reawakened this enforcement tool in a possible concession to the Supreme Court’s tragic meddling in Sections 2 and 5.

In its lawsuit, DOJ emphasizes the stingy wording of SB 1, which confines the congressionally mandated assistance to eligible Texas voters to, well, no meaningful assistance whatsoever. Before SB 1 was enacted, Texas guidance for election administrators directed assistors to “be prepared to read or explain all ballot choices or questions in a language the voter understands.” Now, according to the complaint, “Assistors must not answer a voter’s questions.” Help is constrained “to ‘reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot.’” Assistors must also take a “revised oath” that prohibits them from “explaining the voting process, paraphrasing complex language, and providing other forms of voting assistance”—all despite witness testimony during hearings before the Texas Senate and a House Select Committee on Constitutional Rights and Remedies that such kinds of assistance are necessary for affected voters.

DOJ also complains about a number of new voter identification requirements:

By requiring rejection of mail ballot materials that do not contain identification numbers that identify the same voter identified on the voter’s application for voter registration, SB 1 mandates rejection of written materials requisite to voting based on errors or omissions that are not material to determining a voter’s qualification to vote or vote by mail.

Texas Republicans champion these enfeebling tactics as necessary to combat voter fraud—a claim that’s frankly laughable. As the DOJ suit notes, during the six years prior to April 2021, Texans cast 40,257,541 ballots. Of those tens of millions of votes, Texas Attorney General Ken Paxton, who has been in office that whole time, managed to convict only 16 people of election-related violations—or 0.0000397 percent of votes cast—even after the state devoted extra funding to an “Election Integrity Division” for that effort. Texas Elections Director Keith Ingram also declared that, “in spite of all the circumstances, Texas had an election that was smooth and secure” in November 2020.

Nonetheless, over the summer of 2021, Governor Greg Abbott called a number of special sessions of the Texas Legislature to address “legislation strengthening the integrity of elections in Texas.” He signed SB 1 into law in September; it goes into effect on December 2.

The DOJ suit offers a slew of statistics regarding voters in Texas, which has “a history of discrimination against voters with disabilities” and “minority voters.” A 2019 survey estimated that 28 percent of adults in Texas have a disability relating to mobility, cognition, or vision. As of the 2020 Census, 39.3 percent of Texas voters are Hispanic or Latino, 12.5 percent are African American, and 5.9 percent are Asian American—a total of over 57 percent of the voting population. Many speak principal languages other than English.

Under SB 1, the only “assistance” these voters can get in Texas—despite the clear mandate of the Voting Rights Act—is the reading of the ballot in the languages written on it (almost always English and Spanish in Texas), the marking of the ballot, or directing the voter to read or mark the ballot.

No answering of voters’ questions is allowed.

No explaining the voting process.

No paraphrasing complex language.

No translation.

No other kinds of assistance.

That these shenanigans continue 151 years after the Fifteenth Amendment was ratified and 56 after the Voting Rights Act became law is a sad reminder that the protection of the franchise can never be settled definitively but must always be guarded with vigilance.

Perhaps saddest of all is that, of the three constitutional branches of the federal government, the judiciary, and specifically the Supreme Court, is the one guilty of pulling the voting rug out from under the most vulnerable voters seeking to participate in our democracy. To be sure it’s good news that U.S. Attorney General Merrick Garland is willing to use one of the few tools left in the Voting Rights Act toolbox to protect the right to vote in Texas. We will soon see how the Court responds to this lawsuit; should they wish to, the justices could hear the case on an expedited basis. In the meantime, Congress should act quickly to pass the voting-rights bills before it, to help safeguard the centerpiece of democracy: the ballot box.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.