America’s voting rights laws are an empty shell of what they were just a decade ago. In Shelby County v. Holder, the Supreme Court in 2013 voted along party lines to neuter much of the Voting Rights Act (VRA). Then, in Abbott v. Perez, a similarly partisan Supreme Court held in 2017 that voting rights plaintiffs alleging intentional racial discrimination must overcome a burden of proof that is so high that it will likely prove insurmountable in nearly all cases.
Nevertheless, there was a narrow sliver of hope remaining that the state of Texas might suffer consequences for drawing legislative maps that “intentionally diluted the Latino vote in violation of § 2 of the VRA and the Fourteenth Amendment.” The case, Perez v. Abbott, was a remnant of the litigation the Supreme Court used to undercut victims of intentional racial discrimination.
Shelby County struck down a provision of the Voting Rights Act which held that certain states and localities are subject to “preclearance,” a regime that requires them to clear any new election laws with the Justice Department or with a federal court in Washington, D.C. But Shelby County did not touch a separate provision that allows courts to newly impose preclearance on states caught engaging in intentional racial voter discrimination.
Meanwhile, Abbott v. Perez involved two different versions of Texas’ legislative maps. A federal court found that the 2011 version of those maps were an intentional racial gerrymander, and the Supreme Court did not disturb that finding. Rather, it found that 2013 amendments to those maps, which redrew some but not all of the racist districts, effectively cleansed the new maps of any racist taint.
Taken together, however, these two cases left a narrow opportunity to hold Texas accountable for its racist maps. Shelby County does not prevent states that engage in intentional race discrimination from being subjected to preclearance. And Abbott v. Perez focused largely on the 2013 maps, while leaving in place the determination that the 2011 maps were drawn for racist reasons. Accordingly, voting rights advocates hoped to bring Texas back under the preclearance regime.
On Wednesday, a panel of three judges denied this request. Though the judges admitted to “grave concerns about Texas’s past conduct,” they ultimately concluded that “ordering preclearance on the current record would be inappropriate,” given high court decisions limiting voting rights.
That’s not really a surprising decision. Shelby County and Abbott v. Perez both make it quite clear that this Supreme Court isn’t interested in aggressively policing racist voter discrimination. Had the three-judge panel taken the other course, it likely would have been reversed in another, party-line vote.
Nor is it clear that preclearance is an effective remedy, at least so long as Republicans control the Justice Department. Had Texas been subjected to preclearance, Attorney General Bill Barr’s Justice Department would likely act as a rubber stamp, approving whatever new voting laws Texas’ Republican lawmakers enact.
But, at the very least, a decision subjecting Texas to preclearance would have meant that there would be safeguards against racist voter discrimination in Texas some of the time. That opportunity is now lost.