Jim Crow Laws
Much has been written about post-Civil War Jim Crow laws enacted in the South to disfranchise African Americans. But Hispanics have also faced innumerable obstacles when exercising their right to vote which began early in the history of the state. The obstacles which have been used or attempted have included literacy and language tests, poll taxes, “white” primaries, discriminatory immigration and naturalization laws, and intimidation.
Early Attempts at Disenfranchisement
Notably, during the Texas Constitutional Convention of 1845,[2] some delegates to the convention raised objections to giving Mexicans an “equality of rights and privileges with the European races.” [2] Their attempts failed. In 1896, the question of whether Mexicans could become naturalized citizens of the United States would be litigated in San Antonio, Texas. That issue arose in the Rodriguez case.[3] Clearly, the overarching strategy of those who challenged naturalization by Mexicans had voting numbers in mind. If the court ruled that Mexicans were ineligible for citizenship, many of the Mexican voters of Bexar County would not be able to acquire U.S. citizenship and would thus be unable to vote in local, state and federal elections. The Nationality Act of 1790 held that only “free white persons” were entitled to become naturalized citizens. [4] The Fourteenth Amendment, ratified by the states on July 9, 1868, had “granted citizenship to all persons born or naturalized in the United States, including formerly enslaved people.”[5] But no court had ruled on the eligibility of Mexicans to become naturalized citizens until the Rodríguez case in 1897.[6]
Ricardo Rodríguez had immigrated from Mexico in 1883 and settled in San Antonio. He filed his naturalization petition with the Bexar County Clerk in San Antonio, Texas. Anglos filed suit challenging Rodriguez’s petition for naturalization. They opposed his petition alleging that Rodriguez was not a free “white” person, and thus not entitled to become a naturalized citizen. They challenged his application for naturalization on a legal basis presumably grounded in the Nationality Act of 1790 which granted the right of naturalization only to “free white persons.” Rodriguez was described in the legal proceedings as a pure-blooded Mexican, having brown skin, dark eyes, straight black hair, and high cheek bones. Anglo attorneys who filed the suit argued that Mexicans were not “white persons” and were thus not entitled to become naturalized citizens.[7] There was no settled law on what defined the Mexican “race”.
Court briefs in the Rodríguez case focused almost exclusively on the racial status of Mexicans. Challengers argued that being “Spanish” was a mark of whiteness which would satisfy the naturalization laws standards. On the other hand, Mexicans who could not pass as “Spanish” would be rendered, like Asians and Indians, ineligible for citizenship. They argued that “Mexican” meant mixed blood, or Indian, and thus non-white, and ineligible for citizenship. The federal district court hearing the case would draw a distinction between tribal Indians living in the United States and Mexican citizens, regardless of their Indian heritage, desiring to become naturalized U.S. citizens.
The judge avoided the morass regarding racial status and based his ruling on the Treaty of Guadalupe Hidalgo.[8] He cited terms of the Treaty that granted U.S. citizenship to Mexicans who remained in the territory after one year of its adoption and who did not retain their Mexican citizenship.[9] “Regardless of Rodriquez’s racial status from the standpoint of the ethnologist,” the Judge said, “Mexican citizens were embraced within the spirit and intent of our laws upon naturalization.” By ruling that Mexicans were eligible for citizenship, the court was ruling that Mexicans could be naturalized without ruling on the issue of Mexican racial status. The judge declared that the Fourteenth Amendment granted citizenship to all people born or naturalized in the United States, regardless of color or race. He held that “citizens of Mexico are eligible for American citizenship and may be individually naturalized by complying with the provisions of our laws.” Even though Hispanics would be legally entitled to naturalization, they continued to be regarded as outsiders and foreigners who did not fit the profile of a citizen with the right to vote.
White Primaries
Efforts to suppress the vote continued through the early 1900s, when Texas adopted “white primaries” which excluded Hispanics and Blacks from voting in political party primaries. Primaries are a process by which voters can indicate their preference for their party’s candidate who will represent the party in the general election. The Texas Legislature, in the early 1900s, allowed the state’s Democratic Party to ban Blacks and Hispanics from voting in the Democratic party primary.[10] Notably, winning the Democratic primary always meant winning the general election. Thus, barring Blacks and Hispanic from voting in the primary meant they were in essence effectively disenfranchised from participating in the electoral process. White primaries were used throughout Texas, including in Gonzales County, Dimmit County, Duval County and Wharton County, where both blacks and Hispanics were excluded from their primaries.[11] As late as 1944, these exclusionary primaries sprouted throughout Texas with names like the White Man’s Primary in Dimmit County. In other counties they used names like the “White Man’s Union,” “White Man’s Party,” and the “White Man’s Union Association” which restricted both blacks and Hispanics from exercising their right to vote.[12] The Supreme Court would finally declare the “white primaries” unconstitutional in Smith v. Allwright.[13]
Other Barriers to Voting
Other techniques for disenfranchisement would be developed and imposed by the Texas Legislature. These included prohibiting interpreters at the polls to limit the number of Hispanics from voting. There were also poll taxes and literacy tests.[14] The poll tax was adopted in the 1824 Texas Constitution.[15] It was a prerequisite to vote applicable to whites as well as Blacks and Hispanics, but served as a barrier to the working class and poor. It also included a grandfather clause which allowed any adult male whose father or grandfather had voted in a year prior to the abolition of slavery to vote without paying the poll tax. The Poll Tax lingered until it was declared unconstitutional in federal elections by the 24th amendment in 1964.[16] The U.S. Supreme Court would declare the poll tax unconstitutional in state and local elections in 1966 under the equal protection clause of the 14th Amendment in Harper v. Virginia Board of Electors.[17]
Voting Rights Act of 1965
Despite the 15th Amendment granting the right to vote to African American men in 1870, states, particularly in the South, in ensuing decades, implemented various Jim Crow laws, discriminatory practices known as Jim Crow laws such as the poll tax and literacy tests to deny African Americans the right to vote.
Literacy tests served the same purpose as they did in the South to exclude Hispanics from voting. They were used until 1965 when Congress enacted the Voting Rights Act of 1965 (“VRA”) which prohibited jurisdictions from administering literacy tests to citizens who had attained a sixth-grade education in an American school in which the predominant language was Spanish.[18] When all these methods aimed at restricting voting based on race or ethnicity were made illegal, gerrymandering became the preferred method of restricting voting. Gerrymandering has been implemented with much success to dilute the minority vote to prevent their preferred candidates for winning elections. Texas used mega-sized gerrymandered white majority districts to shut out the Hispanic vote in the early 1960s. In 1971, the Mexican American Legal Defense Educational Fund (MALDEF) representing Joe Bernal and other Mexican Americans living in Bexar County, sued the State of Texas challenging gerrymandering. The suit filed in federal court challenged the creation of a mega-sized congressional district in San Antonio that was larger than 11 states and was one of the largest districts in the nation. In its decision, the U.S. Supreme Court noted that “cultural incompatibility co-joined with the poll tax and the most restrictive voter registration procedures in the nation have operated to deny Mexican American access to the political process in Texas even longer than the Blacks were formerly denied access by the white primary.”[19ix] The Court ruled that the mega gerrymandered district in Bexar county was unconstitutional because it violated Hispanic’s 14th Amendment’s guarantee of equal protection under the law.[20]
Section 4(b) of the Voting Rights Act contained a coverage formula designed to encompass jurisdictions that had a history of discriminatory laws and held them liable to special provisions within the Act to ensure that the right to vote within those jurisdictions would be protected. Texas was one of the covered jurisdictions with a history of discrimination. Under Section 5 of the VRA, these jurisdictions had to pre-clear any electoral changes in redistricting with the Department of Justice before they could take effect. This was to ensure that a change did not have a discriminatory effect. In terms of redistricting, Section 5 required that the number of minority districts could not decrease. But in 2013, under Shelby County v. Holder,[21] the U.S. Supreme Court held Section 4(b) of the VRA unconstitutional. The Court stated that “Section 4(b) of the VRA imposes current burdens that are no longer responsive to the current conditions in the voting districts in question.” [22] Under Shelby, states like Texas could change voting procedures without any preclearance from the federal government. Section 5 of the VRA is no longer functionally operative following Shelby. With this requirement gone, states like Texas with a history of discriminatory behavior can make and are now making changes and are redistricting without federal pre-clearance. If redistricting is not purposely devised solely on race, gerrymandering is in large part legally permissible by virtue of the Supreme Court’s invalidation of the preclearance requirement of the Voting Rights Act.
Voting Rights Act of 1975 and Language Minorities
When the Voting Rights Act of 1965 was enacted, it abolished most voting barriers faced by southern Blacks by requiring that certain political jurisdictions, including Texas, gain Justice Department pre-clearance of any voting law change or election procedural changes to ensure that no one was excluded from voting. Hispanics in Texas, however, still faced harassment and intimidation at the polls. In 1975, Mexican Americans lobbied for amendments to the Voting Rights Act to address specific state election practices which Hispanics still faced. Leonel Castillo who was Houston City Controller and a prominent Chicano activist gave examples in his testimony in 1975 before the House Judiciary Committee of the kinds of intimidation Hispanics faced at the polls.[23] He supported his testimony with a twenty-nine-page report documenting instances of harassment and intimation of Hispanics voters in Texas. Castillo’s list of grievances included denial of registration certification, denial of assistance to non-English speakers and illiterate voters, disabled voters, biased use of residential requirements, inaccessible voting places, and difficulty in obtaining voter registration material. Castillo and others testified of how armed law enforcement officials, especially the U.S. Border Patrol and the Texas Rangers, were often dispatched to polling places for the sole purpose of intimidating Hispanic voters. Castillo remarked that even with the protections afforded by the Voting Rights Act after 1965, “the atmosphere surrounding these elections was tense and hostile.”
The testimony of Leonel Castillo and other Hispanics on the discrimination Hispanics faced convinced the U.S. House and Senate judiciary committees in 1975 to extend protection of the Voting Rights Act to “language minorities.”[24] The 1975 amendment to the Act included Hispanics as a language minority group entitled to bilingual ballots and voter registration in those jurisdictions where they constituted five percent or more of the voting-age population. Hispanics formed well over five percent of hundreds of political jurisdictions throughout the Southwest and in urban areas of the Midwest and the East. This testimony by Hispanics describing the overt discrimination in Texas earned Hispanics the special protection which had been extended to Blacks by the Voting Rights Act ten years prior.
The New Texas Juan Crow Laws
Texas is considered the state with the most restrictive voting processes in the country.[25] It ranks dead last as the most restricted state for a person to exercise their right to vote. Yet as of this writing, the Texas legislature is currently considering the adoption of some version of Senate Bill 7 to further restrict a person’s right to vote. This bill is being touted as a “election integrity” measure and is characterized by its proponents to maintain “purity of the ballot box and standardize election administration.” But in practice, it would severely limit how the state’s counties respond to their different communities’ interests and needs by eliminating flexible early voting hours, structures and distribution methods, while imposing burdens and barriers to the ability of Black and Hispanic Texans to participate in the political process. Opponents argued its real purpose is to intimidate, discourage, and minimize the political power of millions of Texas, disproportionately people of color, students, those living in rural communities and individuals with disabilities. Among its most concerning provisions are those that will reduce early voting hours, cut the number of voting machines available at polling locations, irrespective of the size of and number of voters that the polling location serves, eliminate most drive thru voting, severely limit the distribution of applications for an early voting ballot, and empower poll watchers to harass and intimate voters. The Legal Defense and Educational Fund of the NAACP analyzed the legislation and voiced their opposition to the Senate State Affairs Committee because this is what it purports to do[26]:
1. Limits Early Voting Hours
Under current law Texas offers early voting by personal appearance and by mail. Early voting by personal appearance is available to any qualified voter. Texas law currently requires most main early voting polling places to remain open for at least 12 hours on each weekday of the last week of the early voting period. Texas law currently allows county election officials to determine which hours early voting is to be conducted. The proposed legislation ends the discretion many urban counties, with higher Black and Hispanic populations, used to expand early voting by personal appearance by prohibiting any polling place from offering more than 12 hours of early voting, but also prohibiting those 12 hours of early voting from occurring at a time other than between 7:00 AM and 7:00 PM. Thus, it does not provide voters with sufficient opportunities to vote after work by limiting the hours of early voting and prohibiting early voting from occurring outside of peak work hours. This will disproportionately affect the ability of Black and Hispanic voters to vote in person, particularly those voters whose working hours are not flexible.
2. Elimination of Voting Mega Centers
The proposed new legislation also take aim at the voting mega- centers that many large jurisdictions in Texas have used in recent election cycles, including in the 2020 election to respond to the pandemic to ensure voting is safe, efficient, and readily available in densely populated urban jurisdictions. The areas in Texas where mega-centers have been relied upon likewise have significantly higher Black and Hispanic populations. The new legislation eliminates the possibility of such mega-centers by requiring that each countywide polling place in a county must have approximately the same number of voting machines as each other countywide polling place in the county. This eliminates the creation of voting mega-centers because these centers necessarily had more voting machines than other polling locations in the county. The proposed legislation takes aim at a method of voting Black and Hispanic voters use in Urban centers in Texas, some of the fastest growing locations in the United States: Dallas, Houston, San Antonio, and Austin with high Black and Hispanic populations. The eliminated voting mega-centers are in urban centers with significantly higher Black and brown populations. Long lines at the polls, in turn, have been shown to discourage Black and Hispanic voters who are more likely to have inflexible job schedules, from casting a ballot. Not only will the elimination of such voting mega-centers harm the many voters able to vote efficiently and effectively in person in 2020 as a result of their availability, it will disproportionately harm the rapidly growing urban centers in the state which have significantly higher Black and Hispanic populations. 3.Elimination of Drive-Thru Voting
Texas law currently allows for the creation of temporary branch polling places during early voting and for county election officials to use movable structures as polling places. These provisions for casting votes allowed some counties to develop a plan, with input from both major political parties, to use tents as polling places, giving voters the option of driving up into these movable structures and safely casting a ballot. Methods of voting like drive- thru voting make voting by personal appearance easier, safer, and more accessible benefitting elderly, disabled, and Black and Hispanic voters. The new legislation eliminates this method of voting.
4. Early and Absentee Voting Ballot Applications
SB 7 also takes aim at Texas voters’ access to early voting and absentee applications by preventing any election official from distributing an application form for an early voting ballot to a person who did not request an application or from using public funds to facilitate the distribution of an application form for an early voting ballot to a person who did not request an application. It goes on to prevent the voting clerk from making any attempt to solicit a person to complete an application for an early voting ballot by mail, whether directly or through a third party. Texas law previously allowed election officials to send applications to every registered voter within their jurisdiction. During the COVID-19 pandemic in particular, election officials used this ability to ensure voters had easy access to an application form, which they might otherwise be unaware of or unable to download and print. This practice also ensured that fewer people were required to vote in person on Election Day, which served to mitigate long lines at the polls and the corresponding spread of the coronavirus. The proposed legislation eliminates this possibility entirely, without any apparent justification. The proposed legislation now requires disabled voters to show proof they are living with a disability in order to request an absentee ballot. Also, the new measures mandate anyone assisting voters in completing ballots to fill out an additional form explaining their relationship to the voter as well as why assistance is necessary.
5. Empowering Partisan Poll Watchers
Election administration should not be partisan, yet the proposed legislation deputizes poll watchers with cameras, empowering them to freely harass and intimidate voters. Although Texas law places limitations on who can serve as a poll watcher – requiring that poll watchers be appointed by either a candidate for office, a political party, or a proponent or opponent of a ballot measure. SB 7 deputizes and empowers these political operatives to roam freely and record voters in polling locations, which gives them the ability, if not the right, to engage in voter intimidation. The proposed legislation specifically eliminates Texas’ previous restrictions on poll watchers recording voters in polling locations, thereby providing opportunities for watchers to target and harass voters by using their images from the polling locations. Texas law already allows partisan watchers to observe when an election worker helps a voter at the polls and gives watchers the ability to examine the ballots of voters who have received assistance from election workers. But currently, watchers are not allowed to record voters and are not allowed to intrude upon the area where a voter is preparing his or her ballot. The new legislation does away with these limitations entirely. Also, the legislation would make it a Class A misdemeanor for any election worker to distance or obstruct the view of a watcher in a way that makes observation reasonably ineffective or to knowingly refuse to accept a watcher for service. These provisions create the opportunity for widespread challenges of lawful voters and will particularly intimidate Black and Hispanic voters who are more likely to be the subject of such challenges. The new legislation positions Texas poll watchers to engage in precisely the type of intimidating conduct. It is precisely this type of threatening conduct that the new legislation empowers by deputizing partisan poll watchers to roam around polling locations, never to be impeded, and gives them the ability to record voters and harass them using these recordings even after they leave the polling location.
Challenges to the New Juan Crow Laws
The original Jim Crow law were called de facto discrimination because they were overt and private practices. But what we find in this legislation is de jure discrimination. That is, government is actively restricting voting access affecting voters of color. In fact, legislatures in 47 states have introduced legislation that would restrict voting access. This is what is being described as The New Jim Crow with a Suit and Tie. One cannot prove the intent of these laws, but it can be fairly said that these laws are motivated to make it harder for people of color to vote. There is no compelling reason to ban voting after 7 p.m., except that votes cast later in the day tend to skew toward working class communities and voters of color. There is no good reason to require every single polling location to have the same number of voting machines, except it create longer lines making it harder for working voters to cast their ballots during regular voting hours and still get back to work on time. There is no justifiable reason for the state to require disable voters to prove their disability in order to receive curbside accommodations. There is no reasonable explanation to empower poll watchers to roam freely around polling places to record voters other than to intimate and harass voters. These attacks on voting rights are not grounded in facts but are motivated to keep people from voting. Groups such as the Mexican American Legal Defense Fund (MALDEF), the National Association for the Advancement of Colored People (NAACP), and the Texas Alliance For Retired Americans have voiced their opposition to the provisions in Senate Bill 7. They testified that the harmful provisions in the legislation will have a disproportional impact on Black and Hispanic voters as well as with disable voters that cannot be justified by any legitimate state interest. Opponents have testified how these various provisions in the legislation violate various provisions of the Voting Right Act of 1965, The American Disability Act of 1990 and the 14th and 15th Amendments of the US Constitution. If ratified, court challenges are expected from MALDEF and NAACP to these New Jim Crow laws. The State’s interest of standardization and integrity does not justify the burden it imposes on the right to vote. Under the current judicial standard, the Court weights the character and magnitude of the injury on voting rights against the interest of the State in standardization and integrity as justification for the burden imposed by the statue on voting rights. The inquiry of the Court of the state voting statue depends upon the extent to which the statue burdens the Voting Rights Act of 1965 which states: 42 U.S.C. 10307(a) No voting qualification or prerequisite to voting or standard, practice or procedure shall be imposed or applied by any state or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. (b) No person, whether acting under color of law or otherwise shall intimate threaten or coerce or attempt to intimate threaten or coerce any person for voting or attempting to vote.
For the People Act
On Friday, May 8, 2021, Texas voter suppression legislation, Senate Bill 7, passed the Texas House after much debate. Senate Bill 7 now goes to conference committee to resolve the difference between what the Senate version and the House version. Legislators must still draft a final version of the bill, which then must be voted on again by both House and Senate.
In the debate between the proponents and opponents of the legislation, State Representative Rafael Anchia, a Democrat from Dallas County, questioned the purpose of the following phrase in the legislation, “to maintain the purity of the ballot box.”[17]Representative Anchia went on to explain that this phrase comes from the Jim Crow laws that established the all-white primaries justifying the disenfranchisement of people unfit to vote. “It is a word choice loaded with history,” Anchia said, “it is a phrase that fueled all white priaries during the ear of the Jim Crow laws.18. Nina Perales from the Mexican American Legal Defense and Educational Fund further told the Washington Post, “this phrase in the bill is racism’s calling card.”[19] The bill’s language goes to the heart of its intention to keep people of color from the polls. The Texas legislative session ended on May 31, 2021. Members of the Mexican American caucus walked out of the session, effectively terminating a quorum and preventing adopting of the bill. This legislation should not become law, but if it does, it needs to be challenged because it violates our right to vote.
Voter suppression in Texas has always existed. Sometimes it is overt like a poll tax, a literacy test or white primaries such as in the past, but today it is operates more subtly, such as this new legislation that limits voting hours and polling places and empowers poll watchers to intimate voters. The new legislation is espoused to be about election integrity its proponents. But fraud has never been found. This is not about fraud or election integrity. It is about preventing citizens from exercising the most important right conferred on them by the U.S. Constitution, the right to vote. According to the Brennan Center for Justice, forty-seven (47) states have introduced voter suppression legislation to curb voting.[30]
To counteract repressive voting laws in states like Texas, federal voting legislation is currently moving through the U.S. Congress. The For the People Act, as proposed, overrides many of these state restrictions. The act affirms Congress’ power to protect the right to vote, regulate federal elections and defend the democratic process in the United States. It gives Congress broad authority to regulate congressional districts as well as to enforce the 14th Amendment which protects the right to vote. It also emphasizes that both the 14th and 15th Amendments give Congress the power to eliminate racial discrimination in state voting restrictions, redistricting, gerrymandering in federal elections, access to the polls and felony disenfranchisement.[31] The proposed federal legislation would require states to allow same day voter registration and restrict the purging of names from voter registration rolls. It would also require at least 15 days of early voting and reduce limits on mail-in voting. Voters would be allowed to sign affidavits attesting to their identity if they do not have the required photo id. The For The People Act passed the House of Representatives on March 3, 2021. The Senate version, which closely tracks the House bill, has been designated Senate Bill 1. The bill has come out of committee and has advanced to the floor of the full Senate for debate. The good news is that the bill has 49 cosponsors and has top priority. If it passes and becomes legislation, many of the provisions will undo the damage caused by the voter suppression legislation at the state level. The concern is whether there is enough time to implement the provisions such as the implementation of the anti-gerrymandering independent redistricting commissions ahead of the next midterm elections. If it does not become legislation before the August recess it will be to late to prevent gerrymandering and voter suppression measures for the 2022 midterm elections.
