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Prof. Ellen Katz 

Prof.'s paper shows that Texas's position in two high-profile cases could backfire

By John Masson
Sept. 17, 2012

The aggressive stance taken by Texas officials in two high-profile cases—one defending affirmative action, and one attacking the Voting Rights Act—may backfire on the state and bring about the strengthening of the latter and the destruction of the former, Michigan Law professor Ellen Katz argues in a new paper.

The two cases are Texas v. Holder and Fisher v. University of Texas at Austin. In the first case, Texas is arguing that the Voting Rights Act is unconstitutional. In the second, the state is defending the affirmative action plan it uses when admitting students to the state's flagship university.

In the paper—"On Overreaching, or Why Rick Perry May Save the Voting Rights Act but Destroy Affirmative Action"—Prof. Katz explores why the Lone Star State may lose both cases. More specifically, she argues that Texas has increased the chance it will lose both cases by staking out markedly extreme positions in each.

With regard to the Voting Rights Act, Katz shows how Texas's decision to press several aggressively narrow readings of its obligations under the statute is now bolstering the argument for why the VRA is still needed. "Texas is inadvertently making the very claim it is seeking to refute," Katz says.

The reason is straightforward, she explains: A fundamental premise of the VRA is that political processes in places subject to the statute's regional provisions are not open and responsive to the interests of minority voters. "Those claiming the statute is obsolete insist this premise is incorrect," Katz says. "But Texas's recent conduct with regard to voter ID and redistricting undercuts that claim and, indeed, reinforces the statute's basic premise."

Last month, a federal court held that Texas's proposed voter ID law is discriminatory within the meaning of the VRA, while a separate panel of that court found that the State enacted its new redistricting plans with discriminatory intent. Texas might have avoided both rulings, Katz argues, had it adopted a less hostile stance toward its obligations under the statute.

Katz suspects that Texas may also be pushing too hard on affirmative action. While Katz notes that any race-based admissions plan is currently vulnerable to attack, she suggests the Justices might have declined review in Fisher had the Texas plan more closely tracked the plan the Court upheld in its 2003 decision Grutter v. Bollinger. Instead, the plan is, in notable ways, more expansive and aggressive than was the Michigan program. As such, it threatens to bolster the aversion many Justices already feel toward affirmative action.

"Texas is pressing claims in Fisher and Holder that are rarely pursued by a single litigant," Katz noted. Linking these claims, she says, is the aggressive stance the state is taking toward existing law on both subjects. "Had the State pressed for less," Katz said, "it would be better positioned now to get more of what it wants."

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