How the Supreme Court gave Texas Republicans a boost in defending their controversial new election bill

Demonstrators call for Senators, specifically US Senator Joe Manchin, Democrat of West Virginia, to support the elimination of the Senate filibuster in order to pass voting rights legislation and economic relief bills, as they protest during the 'Moral March' outside the US Supreme Court on Capitol Hill in Washington, DC.
The Texas legislature is taking up restrictive voting legislation in a July special session. Saul Loeb/AFP via Getty Images
  • Texas is already facing federal lawsuits over Senate Bill 1, legislation to tighten voting and election rules.
  • But the officials tasked with defending the law got a boost from a major Supreme Court decision.
  • The court raised the bar to prove racial discrimination in voting under the Voting Rights Act.
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A slew of Texas election officials, community organizations, and advocacy groups have officially filed the first five lawsuits against Texas’ new GOP-backed voting law – but they face a particularly tough uphill battle thanks to a recent US Supreme Court decision.

After months of a prolonged quorum-breaking walkout by dozen of Democrats in the state House, both chambers of the Texas state legislature passed Senate Bill 1, an omnibus bill primarily sponsored by state Rep. Andrew Murr and Sen. Bryan Hughes.

Gov. Greg Abbott, flanked by those lawmakers, signed the bill into law on Tuesday.

The bill sets new, standardized early voting hours, require voters to provide an identification number when requesting an absentee ballot, impose new regulations for voter assistance, further criminalize paid ballot collection, increase the powers of partisan election observers, and bans several of the ways that predominately Democratic Harris County expanded (or tried to expand) voting access during COVID-19.

The law will prohibit officials from holding voting for 24 hours a day during early voting, ban drive-thru voting, and make it a felony for election officials to send out unsolicited absentee ballot applications to voters.

Plaintiffs represented by the Brennan Center for Justice and co-counsel, the American Civil Liberties Union Foundation and co-counsel, Perkins Coie and the Elias Law Group, and the NAACP Legal Defense and Education Fund and co-counsel, are suing to block the law in federal court, with all four lawsuits filed in US District Court for the Western District of Texas.

The Lawyer’s Committee for Civil Rights Under Law and co-counsel are also representing plaintiffs challenging the law in state court under the Texas Constitution.

All lawsuits broadly argue the bill stifles free expression by cracking down on election officials, erects hurdles that will have a chilling effect on efforts by nonprofits and community organizations to assist voters, and violates the civil rights of voters of color and voters with disabilities.

The lawsuits name various state and local officials including Abbott, Texas Deputy Secretary of State Jose Esparaza, and Texas Attorney General Ken Paxton, as defendants.

The plaintiffs suing in federal court say various provisions of the law violates the First, Fourteenth, and Fifteenth Amendments to the Constitution as well as federal rights laws including the Civil Rights Act, the Voting Rights Act of 1965, and the Americans with Disabilities Act.

But the plaintiffs in three of the federal lawsuits face particular difficulty in their quest to prove that the law violates Section 2 of the Voting Rights Act, thanks to a big July Supreme Court ruling that punctuated years of federal courts siding more and more with states as opposed to voting rights litigants.

In 2021, the Supreme Court took up the case Brnovich vs. Democratic National Committee to determine whether two Arizona voting laws that toss out provisional ballots cast in the wrong precinct and make it a felony offense to return another person’s mail ballot (with limited exceptions) violate Section 2.

Section 2 bans voting policies that “deny or abridge” the right to vote based on race, encompassing intentional and unintentional discrimination. The court’s ruling was limited to racial vote-denial claims, and did not implicate the protections for voters with disabilities in Section 208 of the VRA.

In a 6-3 decision with a majority opinion authored by Justice Samuel Alito, the Court both upheld both laws under Section 2‘s prohibitions against racial vote-denial and set new guidelines that make it more difficult to show voting rights violations under the law, a blow to the litigants now challenging Texas’ Senate Bill 1.

A demonstrator holds up a sign in Houston, Texas
In this Nov. 2, 2020, file photo, demonstrator Gina Dusterhoft holds up a sign as she walks to join others standing across the street from the federal courthouse in Houston, before a hearing in federal court involving drive-thru ballots cast in Harris County. AP Photo/David J. Phillip, File

How the legislation could fare under the Court’s latest decision.

The Supreme Court set five new “guideposts” for how courts should approach Section 2 lawsuits that raise the bar for litigants to show that a given law causes discriminatory effects and give states more leeway to defend voting restrictions.

The majority opinion said courts should consider:

  • If the law imposes more than the “usual burdens” of voting. The majority reasoned that since voting necessarily involves some cost (like getting to the polls or putting a ballot in the mail), plaintiffs should show that the law causes more than “mere inconvenience.”

    • In a non-pandemic context especially, it might be harder to argue that not holding early voting at 3 am or banning drive-thru voting meets that standard.
  • How the law in question compares to voting and election laws in 1982, when Congress last amended Section 2. This new standard could make it more difficult for plaintiffs to challenge restrictive voting laws since very few states offered in-person early voting or no-excuse absentee voting at all back in the 1980s. Still, it could cause courts to view rules that largely did not exist back in the 80s, like Texas’ new requirement for voters to provide ID information on absentee ballot applications, in a different light.

    • That section of the majority opinion also said that courts should place greater weight on policies that have been in effect for longer and are in generally widespread use, like precinct-based voting systems. The expansions of 24-hour voting and drive-thru voting are not longstanding policy but were enacted for the first time in 2020 as a response to the COVID-19 pandemic, and are not as common as precinct voting, for example.
  • How big of a racial disparity a given policy creates. The Court’s majority stipulated that “small disparities” in access “should not be artificially magnified” and argued that the plaintiffs who brought the lawsuit against Arizona did not present sufficient statistical evidence to show that the ballot collection ban had a disparate impact on Native Americans.

    • If provisions limiting all-night and drive-thru voting are signed into law, the evidence on how much they affect voters of color will likely be a major flashpoint point in a Section 2 lawsuit.
  • How easy or difficult it is to vote overall in the state. The syllabus in Brnovich began with “Arizona generally makes it very easy to vote.” This is not the case in Texas, which last year was ranked the hardest state to vote in the nation in a cost-of-voting index devised by a group of political scientists.

    • Texas has a voter registration deadline 30 days out from Election Day, doesn’t offer online, automatic, or same-day voter registration for most voters, requires an excuse to vote absentee, has closed hundreds of polling sites over the past decade, and mandates a photo ID to vote.
  • The state’s interest in preventing voter and election fraud. The Court placed significant weight on lawmakers’ interest in preemptively preventing fraud in upholding Arizona’s ballot collection ban, which is good news for legislators in Texas aiming to further criminalize certain forms of ballot collection and expand poll watcher access in SB1.

    • But provisions limiting 24-hour early voting and drive-thru voting, for example, might have a more difficult time holding up in court under the guise of preventing voter fraud, which is far rarer with in-person than mail voting.