The Biden administration mounts a narrow challenge against Texas’ new election law

The suit targets SB 1’s provisions limiting assistance to voters who need help navigating the voting process, as well as limiting how mail-in voters verify their identities.

Voting rights activists gather during a protest against Texas legislators who are advancing new voting restrictions in Austin, Texas, U.S., May 8, 2021.

The Biden administration is suing Texas over the state's restrictive new election law, which passed during the second special legislative session as Senate Bill 1. The U.S. Department of Justice is challenging the law on relatively narrow grounds.

The DOJ on Thursday formally filed the suit — U.S. v. State of Texas and John Scott, in his official capacity as Texas Secretary of State — in the U.S. District Court for the Western District of Texas, San Antonio Division.

The lawsuit targets two provisions of the Texas law. One provision places limits on assisting voters with disabilities or limited English proficiency, while the other places limits on identity verification for those who vote by mail.

"The challenged provisions will disenfranchise eligible Texas citizens who seek to exercise their right to vote," the filing read. "These vulnerable voters already confront barriers to the ballot box, and SB 1 will exacerbate the challenges they face in exercising their fundamental right to vote."

According to Emily Berman, an associate professor at the University of Houston Law Center, the Biden administration is not seeking to strike down the entire law.

"I think that they are surgically attacking some of the most vulnerable provisions and provisions that have much less obvious political salience in one direction or another," Berman said.

With reference to the provision on assisting voters who need help navigating the voting process, Berman said the Voting Rights Act specifies that voters who need assistance because of disability, inability to read or write, or language barriers are entitled to receive assistance by a person of their choice.

"What the Texas legislation has done is strictly curtail what kinds of assistance are being permitted," Berman said. "And so, the argument is the restrictions being put on what kind of assistance can be provided to voters who need assistance renders that assistance insufficient and therefore violates their rights under the Voting Rights Act to have the assistance that they need.”

Regarding the limits on how mail-in voters verify their identities, Berman said much of the legal argument hinges on provisions of the Voting Rights Act meant to prevent discrimination against minorities through literacy tests.

Left out of the lawsuit was any reference to SB 1's provisions barring 24-hour voting, drive-thru voting, or the unrequested mailing of mail-in ballot applications by elections officials. Also left out was any reference to the increase in power given to partisan poll watchers.

However, the Justice Department's lawsuit does emphasize the lack of proof regarding claims of election fraud being genuine problem in Texas. That includes statistics showing that out of 40 million votes cast in Texas in the past six years, the Texas Attorney General's Office has only convicted 16 defendants for election-related offenses.

"So, in essence, they're saying, even if you make the argument that these measures are helping to bolster the integrity of the election...that those sorts of improvements or restrictions are unnecessary and therefore unnecessarily disenfranchising voters who are going to be denied the right to vote because of them," Berman said.

After the lawsuit was filed, Gov. Greg Abbott responded to the news with a tweet, telling the Biden administration to "bring it.”

“The Texas election integrity law is legal...In Texas it is easier to vote but harder to cheat,” the tweet read.

The lawsuit comes as the Biden administration has struggled to strengthen voting rights with federal legislation. Such legislation has passed the Democrat-controlled House of Representatives, but Republicans have blocked action in the Senate.

"I think it was necessary given what we see in terms of the lack of movement to enact the John Lewis Voting Rights bill, because Congress, and in particular the United States Senate...not busting the filibuster," said Michael O. Adams, a political science professor at Texas Southern University.

Billy Monroe, an expert on elections and constitutional law at Prairie View A&M University, said the lawsuit could have significant implications for federal efforts to challenge Texas' recently adopted congressional maps. And because the 2022 election season has already begun, courts are likely to move on the case quickly, Monroe said.

"I think Texas will do well through at least the Fifth Circuit, because at least in recent years, the (U.S.) Fifth Circuit Court of Appeals has been more open to conservative arguments regarding, I won't say voter fraud but certainly election security," Monroe said. "And it's all going to come down to the Supreme Court."

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Andrew Schneider

Andrew Schneider

Politics and Government Reporter

Andrew heads Houston Public Media's coverage of national, state, and local elections. He also reports on major policy issues before the Texas Legislature and county and city governments across Greater Houston. Before taking up his current post, Andrew spent five years as Houston Public Media's business reporter, covering the oil...

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