Texas Back in Court With U.S. in Minority Voting Fight

Texas will continue using biased election maps to discriminate against black and Latino voters unless ordered to stop, Justice Department lawyers told a panel of U.S. judges as the state’s long-running redistricting trial resumed today in San Antonio.
“We’re here because the State of Texas, as it has in every redistricting cycle since 1970, adopted redistricting plans that discriminate against its minority citizens,” Bryan Sells, a Justice Department lawyer, told a trio of San Antonio judges today. “We have evidence that vote dilution was anything but accidental.”
Texas counters that its Republican-controlled legislature, led by Governor Rick Perry, intended only to weaken Democrats when it drew controversial election maps in 2011, not marginalize black and Latino voters.
The maps “reflect political goals, partisan goals and sometimes unclear guidance in the law,” Patrick Sweeten, chief of the state’s special litigation division, said in court today, “not racial animus.”
Even if the San Antonio judges decide lawmakers “may have made a mistake in interpreting the law, that is not enough to find intentional discrimination,” which the law requires to invalidate the redistricting plan, Sweeten said.

Historical Democrats

To voting-rights activists and the Obama administration, Texas’s position is a distinction without a difference. They contend redrawn voting districts designed to advantage Republicans are biased against minorities who have historically voted more for Democrats.
The resumption of Texas’s three-year fight over election maps is the first voting rights trial since the U.S. Supreme Court ruled last year that states with a history of racial discrimination no longer need federal approval to change their election rules.
If the Obama administration and the voting rights activists it joined win the case, using a section of the 1965 Voting Rights Act the high court left intact, Texas may be forced once again to abide by a policy known as preclearance — the prior approval by the Justice Department or a federal court for changes in electoral matters. The victory would serve as an example to other states and jurisdictions, revitalizing a weakened law that opened the polls to millions of southern blacks.

Boldest Step

The Supreme Court’s ruling in June 2013 marked one of the biggest civil rights decisions in decades and was the boldest step yet by Chief Justice John Roberts’s conservative majority in shedding protections it said are no longer needed.
In terminating the section historically used to trigger the need for preclearance, the court removed a tool the Justice Department had wielded to halt thousands of state and local voting changes. After the decision, Texas imposed voter-identification rules that a Washington court had blocked as discriminatory.
The decision also complicated litigation over Texas’s electoral maps in their long, winding trip through the courts.
Minority rights activists had sued Texas in San Antonio over district maps created by state legislators after the 2010 U.S. census when Texas, now the second-largest U.S. state with 26.5 million residents, gained four congressional seats.
While almost 90 percent of Texas’s 4.3 million new residents were Hispanic and African-American, lawmakers mapped out 10 percent fewer districts likely to elect minority candidates, according to voting-rights advocates.

‘Political Performance’

District boundaries weave in and out of minority communities “to ensure they are always on the losing side of elections,” Allison Riggs, a lawyer for Texas chapters of the National Association for the Advancement of Colored People, told the San Antonio judges. “In Texas, this kind of maneuvering is about race, not about political party.”
The special voting rights panel of three federal judges in San Antonio found the maps biased in a preliminary ruling and blocked the state from using them while the case is pending. The judges then drew their own district lines from census data assembled for Texas to use in 2012 elections, which were repeatedly delayed by the case.
On an emergency appeal by Texas, the U.S. Supreme Court said the San Antonio judges should have started with the plan drawn by elected state officials and not created their own. With time running out before the 2012 presidential vote, the judges imposed temporary maps by tweaking a handful of district boundaries they saw as the most biased, according to court papers.
Then came the Supreme Court’s ruling in Shelby v. Alabama.

Repeal Advised

Texas Attorney General Greg Abbott, a Republican who’s running for governor, advised the legislature to repeal the disputed 2011 maps and make the San Antonio judges’ interim versions official.
Texas contends what it called “political gerrymandering” — drawing oddly shaped districts to include specific population groups to make it harder for opposition candidates to win — is allowed under election laws.
Still, adopting interim maps was “the best way to avoid further intervention from federal judges in the Texas redistricting plans,” Abbott said in a letter obtained by opposing lawyers.
Texas failed to persuade the San Antonio judges to dismiss the case after the state adopted the judges’ interim plan. Voting-rights activists want “this court to operate as if the federal judiciary were unrestrained in its powers to intervene in the reapportionment process,” Abbott said in court papers.

Remaining Work

The San Antonio judges replied that Texas redistricting remains a work in progress.
“The new plans may disadvantage plaintiffs to a lesser degree, but they disadvantage them in the same fundamental way,” the court said in a pre-trial ruling.
Sweeten told the judges that lawmakers got legal advice before drawing their maps, which they knew would be reviewed in court.
“When you draw 150 districts in a map, not everyone will be satisfied,” he said. “The good faith of the Legislature must be presumed.”
This week, the voting rights activists, which include the League of United Latin American Citizens and the city of Austin, will argue that Texas acted with “discriminatory intent” in adopting the interim maps and that state lawmakers will probably draw similarly biased districts after the trial concludes unless the court intervenes.

Electoral Oversight

If Texas loses, it might be forced back under federal electoral oversight for as long as 10 years under a largely untested part of the Voting Rights Act left in place by the Supreme Court. The provision requires preclearance if opponents prove a state is currently discriminating against minority voters and likely to do so in the future, the Justice Department said in a July 2013 filing.
The U.S. joined the case after the decision in Shelby v. Alabama, saying in court filings it had a “strong interest” in how courts interpret and apply the provision in states like Texas, with its “pervasive” history of voter discrimination.
Should the U.S. prevail in San Antonio, the government will try to deploy the same preclearance trigger, known as Section 3C, in other voting-rights cases teed up across the country, Justice Department officials say.
The San Antonio trial will be held in multiple parts focused on different sets of maps. This week’s phase will look at maps for the Texas House of Representatives; a second part, to begin Aug. 11, will examine Texas’s congressional districts.
The judges aren’t expected to rule on preclearance right away, and they’ve said they’ll impose any potential remedies on Texas’s electoral maps later in the trial.
The case is Perez v. Texas, 5:11-360, U.S. District Court, Western District of Texas (San Antonio).
To contact the reporter on this story: Laurel Calkins in federal court in San Antonio, Texas, at laurel@calkins.us.com
This article quoting SCSJ Voting Rights Staff Attorney Allison Riggs originally appeared in Bloomberg Online on July 14, 2014.