On Overreaching, or Why Rick Perry May Save the Voting Rights Act but Destroy Affirmative Action

Abstract:     
The State of Texas is presently staking out two positions that are not typically pursued by a single litigant. On the one hand, Texas is seeking the invalidation of the Voting Rights Act, and, on the other, the State is defending the validity of the expansive race-based affirmative action policy it uses at its flagship university. This Essay presses the claim that Texas has increased the chance it will lose both Texas v. Holder and Fisher v. University of Texas at Austin because it has opted to stake out markedly extreme positions in each. I argue that Texas would be more likely to succeed had it chosen to temper both its actions and claims in the pending cases.

As it stands, Texas’s assertive stance in Fisher promises to bolster the aversion many Justices already feel towards affirmative action. By contrast, Texas’s uncompromising approach to the VRA may prove to be the regime's best defense. As last week’s redistricting and voter ID decisions suggest, Texas’s stance may provide better evidence for why the statute remains necessary than anything proffered by the VRA’s many supporters. Indeed, the State’s aggressively hostile stance towards the VRA has the potential to destabilize judicial misgivings about the statute, and, if not fully reverse them, postpone their implementation.

Number of Pages in PDF File: 20

Keywords: Voting Rights Act, affirmative action, Texas

JEL Classification: J71

working papers series