The state’s lawyers admit they’re worried about unicorns.

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There is a trial underway in Texas that has big implications for the future of voting rights.

The case is LUPE v. State of Texas. It deals with the big, comprehensive voter suppression law passed by the Texas legislature several years back: Senate Bill 1. It intentionally discriminates against Black and Latino voters. It imposes new burdens on mail voting, makes it more difficult for voters who have limited English proficiency or disabilities to receive assistance with voting, takes aim at community and faith-based groups by criminalizing nonpartisan voter turnout activities as “vote harvesting,” and puts poll workers at risk of criminal prosecution if they act to stop partisan poll watchers from harassing voters.

We at the Brennan Center, working with the Mexican American Legal Defense and Educational Fund (MALDEF), are among the attorneys representing voters and officials challenging the scheme.

During the trial’s first week, there was a parade of witnesses testifying to the law’s real-world effects on voters and election officials. A former county clerk said of one provision, “I thought it criminalized a very innocent process that helped often our most vulnerable voters.” A longtime poll worker said of the law, “As long as it’s in effect, I'll never serve again.” And another testified that he would hesitate to recommend that anyone serve because of the risk of prosecution.

S.B. 1’s rules concerning poll watchers create a culture of fear, confusion, and potential chaos at polling places. One county election administrator told the court, “We had tons of complaints that poll watchers were intrusive, and voters felt intimidated because the poll watcher would come and stand behind them as they are voting. . . . It was disturbing.” Another administrator observed that election workers were afraid of being prosecuted for performing their duties of maintaining order at the polling place and protecting voters from intimidation and violence.

In one exchange, a county clerk described the problem of voter fraud as a “unicorn,” because fraud affects at most “ones and twos out of millions of votes, and in most cases [is] unintentional.”

Showing a shaky grasp of mammalian zoology, a lawyer for the state of Texas replied, “Even though voter fraud is a unicorn, we still have to be vigilant.” The preposterous exchange highlighted the flimsiness of the state’s justifications for voter suppression laws.

In the trial’s first few weeks, the court and the nation have learned what voter suppression is truly about — and it has nothing to do with preventing phantom voter fraud. In enacting S.B. 1, Texas set out to keep certain people from voting, and it’s working. In the first election after the law’s enactment, a single provision of the law caused tens of thousands of mail ballot applications and mail ballots to be discarded, and those rejections disproportionately affected voters of color. The law is a reminder of the United States’ basest impulses. It demonstrates the need for strengthened federal protections of the franchise so that all people can participate in our democracy on equal terms.





The Weaponization of Judicial Ethics

Justice Anita Earls, the North Carolina high court’s only Black justice, is suing in federal court to defend her First Amendment right to speak publicly on implicit bias and inequities in the state’s justice system. The lawsuit comes as she’s being investigated for allegedly violating the state’s judicial code of conduct by commenting in an interview about a lack of racial diversity among North Carolina judicial clerks. As Robyn Sanders and Michael Milov-Cordoba write, ethics investigations “should not be used as political weapons to target judges for executing their duties or to silence them.” Read more

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Defending Privacy Rights

As the debate continues over whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act — which allows the government to conduct warrantless searches of Americans’ communications — the Biden administration is rejecting bipartisan calls to seriously reform the law. In particular, White House officials claim that Section 702 is vital to the fight against fentanyl trafficking. While this may be true, Noah Chauvin writes in the Hill, “commonsense reforms to protect Americans’ privacy would not make the law less effective in addressing international drug trafficking or other foreign threats.” READ MORE

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An Abortion Fight on Two Fronts

On Wednesday, the Ohio Supreme Court will hear oral arguments on whether to reinstate a six-week abortion ban that was temporarily blocked by a lower court. This case is especially notable, as Ohioans are just weeks away from voting on a proposed amendment to enshrine abortion rights in the state constitution. Significantly, the court’s ruling “could make it more difficult to bring lawsuits under the new amendment” if it is ultimately approved, Gabriella Sanchez writes in State Court Report. Read more

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Legislative Attacks on State Government Power

The Democratic members of Ohio’s board of education are challenging a state law that eliminates most of the board’s constitutional powers. Partisan efforts by state legislatures to strip the powers of executive officers have increased in recent years. Law professor Quinn Yeargain highlights in State Court Report how state court rulings in similar cases suggest that the Ohio legislature’s actions may have violated the state constitution. Nevertheless, it remains to be seen “whether the conservative majority on the Ohio Supreme Court would entertain such a challenge,” he writes. READ MORE

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Coming Up

TODAY — VIRTUAL EVENT: The Supreme Court at War: How a Past Court Informs the Future

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Thursday, September 28, 1–2 p.m. ET

Join us for a live discussion with The Court at War author and Georgetown Law professor Cliff Sloan to learn about the little-known story of how President Franklin D. Roosevelt altered the most powerful court in the country and the consequences that produced today’s Supreme Court. RSVP

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VIRTUAL EVENT: A Supreme Fact-Check: How the Supreme Court Gets U.S. History Wrong

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Thursday, October 12, 6–7 p.m. ET

The Supreme Court’s conservative supermajority has appealed to history to justify its recent opinions that have eviscerated reproductive freedom, gun control, and affirmative action. But should history be the sole source of rights? And what if the history cited by the Court is flat-out wrong? Join us to examine these issues with historians Laura Edwards of Princeton University, Kate Masur of Northwestern University, and Karen Tani of the University of Pennsylvania. The discussion will be moderated by the Atlantic’s Adam Serwer. RSVP today

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Produced in partnership with the Society for Historians of the Early American Republic

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News

Douglas Keith on the importance of state courts // WABE

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Sean Morales-Doyle on the benefits of automatic voter registration // WASHINGTON POST

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Lawrence Norden on Ohio’s election security policies // THE MESSENGER

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Robyn Sanders on the threat of gun violence at the polls // ETHNIC MEDIA SERVICES

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