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 now 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 in both Texas v. Holder and Fisher v. University of Texas 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. With regard to the VRA, however, Texas's uncompromising approach to the regime may prove to be the VRA's best defense. As recent redistricting and voter ID decisions suggest, Texas's stance may be provide what is arguably 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.