Decades of strategizing by anti-abortion forces and a relentless conservative focus on winning the courts culminated this month in the U.S. Supreme Court's 5-4 decision to allow the nation's most restrictive rollback of reproductive rights to go into effect. The decision effectively prohibits most abortions in Texas and provides a road map for red state legislatures nationwide to evade judicial review and undo Roe v. Wade in their states as well.
But that wasn't the only careful right-wing project that contributed to this back-door assault on five decades of constitutional protections and Supreme Court precedent. This decision is inextricably bound to the long-term GOP war on voting rights, itself a two-front effort between red state legislatures and a conservative Supreme Court majority.
You might even call it a Texas two-step. First, unelected, tenured judges did what elected Republicans didn't feel empowered to do in 2006 and put a stake into the Voting Rights Act. Then, after blessing a new generation of sophisticated voter suppression methods, as well as providing a green light for partisan and racial gerrymanders, uninhibited lawmakers — untethered from nearly any accountability — can pass laws dramatically out of step with voters, like the new Texas abortion bill. This court then smiles on those efforts as well. (And of course, all this is amplified and encouraged by the right-wing media ecosystem.)
It's a nifty closed loop that has the added benefit of sheltering Republicans from any consequences for their extremism, and from any real fear that a changing electorate will threaten entrenched one-party rule.
This isn't even the first time that the Supreme Court and Texas legislature have danced in this fashion, though nearly a decade ago, it was the Roberts court that led.
When Chief Justice John Roberts authored a 5-4 decision in the 2013 Shelby County case, hobbling the Voting Rights Act and putting an end to pre-clearance in states, like Texas, that had a longstanding history of racially motivated voting chicanery, Texas did not wait long before showing America that, contrary to Roberts' sense that things were "dramatically" different in the South, in reality little had changed.
That very afternoon, Texas jumped to take advantage of Roberts' decision by enacting a deeply restrictive voter ID law that requires specific forms of identification to vote. This would be the first post-Shelby voting restriction in Texas, but hardly the last. The new law demanded an ID that 600,000 Latino citizens lacked; it allowed a ballot to be cast with a gun license but not a student ID. It enabled Republicans to place barriers before the rising electorate of young and Hispanic voters who lean Democratic and help ensure themselves a hold on power.
It was a magnificent two-step. When a Republican Congress reauthorized the Voting Rights Act in 2006, nearly unanimously, and the 25-year extension was signed into law by President George W. Bush, GOP leaders whipped the votes for passage, fearing that it would be bad for the Republican brand to be seen as hostile to voting rights. It's a story that Jesse Rhodes tells brilliantly in his book "Ballot Blocked." GOP leaders wanted to make inroads with Latino and Black voters, and worried that Hurricane Katrina and the souring economy and Iraq war might make that a challenge during a tough midterm year. They didn't want to also be seen as keeping minorities from the polls.
So the voting rights putsch was outsourced to the courts. Bush appointed, and the GOP Senate confirmed, two Supreme Court justices known to have a very limited view of the Voting Rights Act's scope and relevancy: Roberts as chief justice and Samuel Alito to replace the retiring Sandra Day O'Connor. Roberts, as a young Justice Department official in the Reagan administration, had lobbied aggressively against the 1982 reauthorization of the VRA.
When the court did the GOP's dirty work, hollowing out the pre-clearance mechanism that Republicans viewed as untenable to take on through the political process, the Roberts decision offered Congress the option to revisit and update the pre-clearance formula. But once the courts had dealt its blow, the Republican majority had no appetite to revisit the VRA and those efforts crashed in Congress. That's the case to this day: When the Democratic House voted on the John Lewis Voting Rights Advancement Act earlier this summer, every House Republican opposed the bill, and it would appear to have little chance of surviving a GOP filibuster in the Senate.
Texas Republicans may well have seen the Shelby County decision coming when they passed a draconian voter ID bill — initially blocked under pre-clearance in 2012 — ahead of the court's ruling. During that same period, Republican lawmakers also prepped new state legislative and congressional maps that were the subject of much complicated litigation from 2011 through 2018.
The legal history here becomes convoluted: Courts originally blocked the first maps enacted by Republicans in 2011. A federal court rejected them under pre-clearance, finding that these lines made it tougher for minority voters to elect a candidate of their choosing. As the 2012 elections neared, a three-judge panel ordered tweaks to the legislative maps — but these were supposed to be temporary fixes while the legal challenges worked their way through the courts.
But when the Shelby decision came down, as the Texas Tribune observed, Texas suddenly no longer needed to pre-clear its maps. Republican leaders disingenuously cloaked themselves in a map they could claim was drawn by the courts, when really those judges had only approved the first step in a much longer process. How could we be diluting minority voters, the state protested, when we just took the courts' map? Lower federal courts disagreed, and developed a rich evidence file that delved deep into the 2011 mapmaking process and referred to the 2013 GOP strategy as "discriminatory at its heart."
Once again, however, the Supreme Court stepped in. In 2018's Abbott v. Perez, the Supreme Court overturned those lower court decisions that found Republicans had diluted minority votes in multiple state house districts. They OK'd what had been called a racial gerrymander of the state legislature which judges said went "out of its way" to preserve GOP power at the expense of Latino voting power, with "serious costs to our democracy."
That 5-4 decision, written by Justice Alito, insisted that when it comes to redistricting, the good faith of the legislature must be assumed. Alito blithely dismissed a 150-page lower court report that laid out, county by county, the precise machinations that Republican mapmakers used to crack and pack growing numbers of Latino voters, and even a careful study of which Latino voters were most likely to turn out. (Those unlikely to vote could also be carefully distributed in order to make districts appear to resemble a "minority opportunity" district, without actually being one.)
In her dissent, Justice Sonia Sotomayor accused the majority of ignoring "undeniable proof of intentional discrimination," contributing to the deliberate underrepresentation of minority voters and doing "great damage" to both equal opportunity and equal participation in the political process. The majority decision, she wrote, "blinds itself to the overwhelming factual record" in order to "allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters."
Texas isn't a red state or a blue state. It's a voter suppression state, with some of the lowest turnout numbers in the country, in part because the state — with the full support of the U.S. Supreme Court, since the 2013 Shelby County case — makes it so difficult to vote. By 2014, Texas turnout had plunged to the lowest in the nation, just 28.3 percent according to the Elections Project. A sexy 2018 U.S. Senate race between Ted Cruz and Beto O'Rourke helped push that number higher, but the Elections Project still found Texas mired among the lowest 10 states in the nation.
Political scientists will long debate the impact of redistricting, voter ID laws and other restrictive techniques, as well as the Roberts court's rulings on the VRA and gerrymandering, on the democratic backsliding that has become a feature of so many red state legislatures and contributed to the growing crisis of GOP minority rule. But no one needs an advanced degree to see the effects of this two-step on extreme legislation on reproductive rights, among other issues, coming from Texas, Ohio, Georgia, Alabama, Missouri and elsewhere — despite zero indication that voters in these states desire these new restrictions or have moved anywhere near as far right on these issues as their representatives.
Perhaps the problem is that this Supreme Court has made it exceptionally difficult for voters to get rid of their representatives when they go too far, and that this has emboldened lawmakers who no longer fear that their extremism might lead either to defeat or reproach from the courts. Indeed, this Supreme Court, under Alito's lead, has encouraged legislatures to go a step further. After the ruling on the Texas law, in which justices threw up their hands at the novel workaround created by empowering citizens to turn in anyone involved in making an abortion possible, the signal to every other state was this: Go as far as you want. This court has your back.
The message to the rest of the nation is clear as well. When voting rights are hollowed out, it opens the door to an assault on every right you hold dear and any policy that matters to you, whether that's reproductive rights, labor rights, gun control, the environment, or whether or not your kids can be asked to wear masks at school during a pandemic.
If voters want to change those policies, Samuel Alito says tough. He can't be voted out of office — and his colleagues just keep tilting the rules so your legislators can't be either.
As redistricting begins in state legislatures nationwide, Republican state legislators are building up their own walls of protection. If Democrats want to reverse course before a potential generation of GOP minority rule, 2022 could be the last chance. Congress must protect voting rights. And we all must prioritize state legislative and secretary of state races. We invest now to win next November — or the Texas two-step could be playing in your state next.