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States were once overt in their race-based voter suppression; today, they hide it in laws that are difficult to challenge | COMMENTARY

Demonstrators join a rally to protest proposed voting bills on the steps of the Texas Capitol, Tuesday, July 13, 2021, in Austin, Texas. Texas Democrats left the state to block sweeping new election laws, while Republican Gov. Greg Abbott threatened them with arrest the moment they return. (AP Photo/Eric Gay)
Demonstrators join a rally to protest proposed voting bills on the steps of the Texas Capitol, Tuesday, July 13, 2021, in Austin, Texas. Texas Democrats left the state to block sweeping new election laws, while Republican Gov. Greg Abbott threatened them with arrest the moment they return. (AP Photo/Eric Gay) (Eric Gay/AP)

In 1943, in the midst of Jim Crow, Langston Hughes gave us a now famous line: “I swear to the Lord / I still can’t see / Why Democracy means / Everybody but me.”

It is tempting to treat this line as a rhetorical flourish, elegiac text meant to guide the reader’s thoughts to the burning answer Hughes obviously had in mind: Racism. But Hughes’s genius lies in the way this seemingly simple question leads to one yet deeper and more arresting: Yes, but why?

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What may have occupied Hughes’s mind were the rooted reasons for the widespread disenfranchisement of Black Americans throughout the United States. Racism, of course, but why was the Country possessed of that disease and why did it manifest in dogged attempts to keep Black Americans from the polls?

As voting restrictions undergo a renaissance across the country, Hughes’s question remains evergreen. But in the intervening 78 years, its power has been diminished by judicially approved sleight-of-hand.

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Republican-led states remain incorrigibly interested in suppressing Black and minority voters, especially as shifting demographics threaten formerly safe electoral districts. But where in the past racially fueled motives were rarely hidden and often articulated, today states are permitted to hide similarly invidious purposes under laws whose text and justifications are seemingly agnostic as to race.

Take Texas as an example: The 87th Texas Legislature is poised to pass one of the most restrictive voting laws in the country, one that will eliminate the availability of franchise-expanding features like drive-through voting, third-party ballot collection and the proactive mailing of absentee ballots. The law will also empower partisan poll watchers, add to the state’s already strict voter identification requirements for voting by mail, and limit the assistance that can be provided to voters. More than simple conveniences, features like these are depended upon by Black and other minority voters in Texas who, by reason of economic and historical disadvantage, often require greater accessibility to polls to vote on Election Day.

In the past, laws like this one were often explicitly based on race and justified by reference to voter suppression. The 38th Texas Legislature passed a statute expressly forbidding anyone but white voters from participating in the state’s primary system. So fervent was the state’s fear of Black voters, it tried three more times to keep the primary free of their voices.

These laws were devastating, no doubt, but the country benefited from their frank reliance on race because they permitted citizens to tease from casual discrimination the grounds from which the era’s inequality arose. Immediately suspect, laws were exposed to questions that might cut to the root of where they came from, providing, even if in glimpses, solutions to widespread racism.

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Aided by the courts, today’s Texas is both smarter and more dangerous. The state’s new voting restrictions are not justified based on race. Instead, like many other states with fresh voting restrictions, Texas has provided a different basis for passing the law: Voter fraud, a justification that has been repeatedly undermined by the evidence.

Maybe if let alone some combination of shame and reasoned argument would have revealed this justification for the pretense it is, but the courts have helped it off the ground. Just this month, the Supreme Court issued its decision in Brnovich v. Democratic National Committee, in which it upheld voting restrictions in Arizona on the strength of the state’s “strong and entirely legitimate” interest in voter fraud.

Perhaps “strong and entirely legitimate” in theory, but the danger of this justification lies in the ease in which it is invoked and its gripping instinctual appeal, sufficient to convince you of its correctness even before considering the evidence. Just consider Brnovich. As Justice Kagan explained in dissent, the court’s majority credited Arizona’s interest in voter fraud despite Arizona’s failure to offer “any evidence of” relevant fraud.

So as Texas does in the name of voter fraud what can only be understood in the name of voter suppression, the country is left vulnerable. Vulnerable because the tools we used in the past to identify voter suppression, the questions left to us by Langston Hughes, are not obviously relevant to laws justified by seemingly legitimate grounds, especially ones sanctioned by the courts. And if not obviously relevant, who among us is left to wonder why? Why is Texas still making it harder to vote? Why are those restrictions targeted at just those Americans most disadvantaged by our country? And why, after 78 years, are we still compelled to ask these questions?

Joseph Posimato (Joseph.posimato@gmail.com; Twitter: @joseph_posimato) is a voting rights attorney at Perkins Coie.

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