Texas voting case demonstrates the need for new preclearance system

In Texas, a trial is underway that will likely have lasting repercussions for voting rights. In La Union del Pueblo Entero v. Abbott (LUPE v. Abbott) a coalition of civil rights and community organizations is arguing that recent Texas voting legislation violates both federal anti-discrimination statutes and the Constitution. The trial’s outcome will affect the rights of 17.1 million Texas voters, with potential implications for other states that have moved to restrict voting access in recent years.

The law known as Senate Bill 1 (S.B. 1) was passed by the Texas legislature in 2021, despite efforts by Democratic lawmakers to block it with a 38-day walkout. S.B. 1 created additional restrictions on mail-in and absentee ballots, limited the assistance that can be provided to voters, and reduced voting hours. The bill also opened election workers and voters to new forms of harassment by partisan poll watchers—an issue in many states, including Texas.

S.B. 1 is part of the latest wave of state legislation making it harder for Americans to vote. At least 26 other states have passed laws restricting voting since 2020. Many of these laws have features similar to those being challenged in the ongoing lawsuit. So far in 2023, seven states have already passed laws that restrict mail voting. South Dakota also enacted vague legislation criminalizing poll workers who do not allow poll watchers to observe the processing of absentee ballots from a “reasonable distance.”

Two parts of the Texas law have already been found illegal. In 2022, a federal judge in Texas ruled that portions of S.B. 1 restricting voter assistance violated a 2018 federal injunction. Under S.B. 1, those assisting a voter could read the text of the ballot to the voter or mark the ballot but not answer any clarification questions the voter might have. Civil rights advocacy groups including the NAACP Legal Defense Fund successfully argued that the law’s provisions hindered voters with disabilities and voters who spoke limited English.

Then, last month, the judge overseeing LUPE v. Abbott issued a summary ruling striking down sections of S.B. 1 that regulated mail ballots. The nullified sections required administrators to reject mail ballots and mail ballot applications if voters’ ID numbers on their ballot or application did not match the ID numbers provided on their voter registration form. For example, if a voter used their Social Security number to register to vote but wrote their driver’s license number on their ballot, their ballot could be disqualified, even though both forms of ID were valid. The judge found that the ID matching requirement violated the 1964 Civil Rights Act’s materiality provision, which forbids denying people the right to vote for errors that are not substantively related to their qualification to vote.

These earlier decisions bode well for voting rights in Texas. But no matter the outcome of the ongoing case, it will come too late. Already, in the 2022 primary election, thousands of voters—disproportionately voters of color—were disenfranchised by S.B. 1.

Cases like LUPE v. Abbott reveal the importance of the Voting Rights Act (VRA) . Section 5 of the VRA required state and local governments that had a history of discriminatory voting practices to receive “preclearance” from the federal government before altering their election policies. In 2013, in Shelby County v. Holder, the Supreme Court rejected the formula used to determine the areas that require preclearance. Shelby made it possible for places with a history of voting rights violations, like Texas, to implement restrictive voting laws for months and even years before the slow-moving legal system takes action.

Until preclearance is restored, the passage of restrictive voting laws will only be addressed in individual court cases, often years after the laws have had their discriminatory effect. In the meantime, eligible voters will be disenfranchised. The decision on S.B. 1 will, at best, provide another stopgap protection for voting rights. American voters deserve better.