Analysis: A Texas election in the shade of government’s third branch

Laws are laws until judges or legislators toss them out. For political purposes, a law that doesn’t survive court challenges can still count as a win — as long as it remains in place through an election.

Some of the biggest political issues in Texas are pending in court.

The U.S. Supreme Court heard arguments on Friday about the constitutionality of federal vaccine mandates, a tussle that has the federal government on one side and Texas and other states on the other.

The 5th U.S. Circuit Court of Appeals in New Orleans is now the forum for lawsuits over the state’s new ban on abortions after detection of a fetal pulse, usually about six weeks into a pregnancy. That’s one of the nation’s most restrictive laws and its fate will ultimately depend on a ruling from the Supreme Court, which is reconsidering its 49-year-old ruling in Roe v. Wade.

The election season in Texas is well underway, even with two major legislative issues — new political maps and newly restrictive voting and election laws — working their way through the courts. The courts have delayed elections in the past when redistricting maps were not to their liking, but they don’t have a lot of time left: Early voting in the Texas primaries starts on Feb. 14. And the state’s new law on voting and election practices, also tangled up in court, will remain in place until and unless the courts say otherwise.

In each of those cases, the supporters of the new laws, or of the federal orders on vaccines, will get their way unless the courts decide otherwise. Opponents of those laws, looking for federal lenience, will all have to wait.

It all might balance out in the long run, but vaccines, abortions and voting in an election that’s weeks away are short-run concerns for many. The winning side might change when those cases are complete, but in the meantime, the assumption is that the governments that changed the rules knew what they were doing.

When it comes to elections, that’s a relatively new development. Texas has been cited over and over by the courts for “intentional discrimination” in redistricting. A lawsuit filed in October alleges that the new maps provide fresh examples of that.

But Texas is no longer required, as it was until 2013, to get changes in its maps and its voting laws approved by federal courts or the U.S. Department of Justice before putting them into effect.

States make laws all the time, but voting laws are a peculiar case. The federal Voting Rights Act was written to stop states with histories of discriminating — states like this one — from revising and refining their bad behavior to stay ahead of equal rights legislation. They were required to get permission before their changes could take effect.

But after that 2013 ruling from the Supreme Court, instead of waiting for “preclearance,” states can proceed with their new laws until the courts stop them. A voting or election law that turns out to be illegal after the lawsuits are judged remains in effect until that judging is done.

In the meantime, the elections go on under the new law, which is presumed to be constitutional — and nondiscriminatory.

Abortion laws and vaccine or mask mandates can be time-sensitive, too. For now, the new restrictions on abortion in Texas remain in effect while the court challenges to it proceed. Anyone seeking an abortion — or helping someone seek an abortion — is subject to the restrictions in the new law. Even if the courts eventually overturn the Texas law, someone seeking an abortion right now has to follow it.

The same goes for the federal vaccine mandates. Unless the courts put a temporary hold on those orders, they’ll remain in effect for now.

It’s clear what laws are in effect on voting, redistricting, abortion and vaccines here in the first month of 2022 — what Texans are allowed to do in the current election, whether they’re able to obtain abortions and whether they’re required to follow government vaccine mandates.

But it might be temporary.