Plaintiffs in a Texas lawsuit are challenging that state’s voter ID law on the grounds that it has a disparate impact on minority voters. Texas Attorney General Greg Abbott, who wants to be the next governor of the state, is not only arguing that this is false, he’s arguing that no one even has a right to bring such a lawsuit.
In their motion, however, Texas does not simply claim that its voter ID law survives a disparate impact suit — it claims that these suits should cease to exist altogether in the voting rights context. As the motion incorrectly claims, the text of the Voting Rights Act “does not prohibit laws that merely have a disparate impact on racial or language minorities.”
This is not just false, it is egregiously false. The Voting Rights Act explicitly allows a plaintiff to prevail if “the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by [racial minorities] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Moreover, the law does not simply forbid acts that are intended to prevent minorities from voting, it also forbids any voting regime that “results in a denial or abridgement” of voters of color’s right to vote. Texas’ motion ignores the plain language of the law in an attempt to eliminate the most effective remaining way to prevent race discrimination in voting.
Texas is also fighting a battle that’s already been decided against them. In a 1980 case called Mobile v. Bolden the Supreme Court interpreted the Voting Rights Act in the narrow way Texas suggests in its motion. Two years later, President Ronald Reagan signed legislation that effectively overturned Boldenby explicitly authorizing disparate impact suits under the Voting Rights Act. Now, however, Texas asks the courts to pretend like Reagan never signed this law.
The Supreme Court has already removed one of the most important elements of the Voting Rights Act. If Abbott’s legal argument prevails, it will pretty much put the nail in the coffin and render that law completely moot.