Federal Judges Deny Request to Place Texas Back Under Redistricting Supervision

July 25, 2019by James Barragan
The Texas Capitol in downtown Austin, Texas. (Ralph Barrera/Austin American-Statesman/TNS)

DALLAS — Federal judges on Wednesday denied a request by minority voters, voting rights organizations and Democratic lawmakers to place the state back under federal supervision for the next redistricting cycle, ending a protracted voting rights legal battle that spanned most of the decade.

Although the ruling gave the state a victory, the judges noted the state’s history of trying to disenfranchise minority voters through the redistricting process and warned that not following the Voting Rights Act in the future could put it back under federal supervision.

The plaintiffs in the case argued that the state’s pattern of discrimination against minority voters warranted placing it back under federal supervision that would require approval before being allowed to make any redistricting decisions beginning in 2021. The action would have been an unprecedented move by the three-judge panel that was overseeing the case. It was strongly opposed by the state, which said the plaintiffs were trying to argue an issue that had already been resolved.

In an opinion written by Judge Xavier Rodriguez, the three-judge federal panel from San Antonio said that while it had substantiated the state’s intent to discriminate against minority voters in electoral maps in 2011, the Supreme Court found that those violations had been remedied in a 2013 re-draw. Therefore, the court said, it had no current violations under which to impose the federal supervision and found “insufficient basis upon which to award” the plaintiffs’ request.

However, the court warned that it was worried about Texas’ track record of discriminating against minority voters.

“The Court has grave concerns about Texas’s past conduct,” Rodriguez wrote. “During the 2011 legislative session, Texas engaged in traditional means of vote dilution such as cracking and packing in drawing districts, and also utilized newer methods of dilution and suppression such as using the “nudge factor” and passing voter ID requirements.”

The judges — two Republican appointees and one Democratic appointee — warned about high levels of racially polarized voting across the state and said that “given the fact of changing population demographics, the likelihood increases that the Texas Legislature will continue to find ways to attempt to engage in ‘ingenious defiance of the Constitution.’”

The judges said they were disappointed by a state lawyer’s refusal to commit in court to a “fair and open” process in the next redistricting cycle without knowing how that term was defined.

But given recent decisions by the Supreme Court and federal appeals courts on voting rights cases, Rodriguez wrote, “ordering preclearance under the current record would be inappropriate.”

Rodriguez also pointed to the landmark 2013 Shelby County v. Holder case, which did away with significant portions of the Voting Rights Act that had kept states with histories of racial discrimination, like Texas, under federal supervision since the 1970s. Since that decision, Rodriguez noted, courts have been hesitant to grant the type of relief the plaintiffs were asking for.

Still, Rodriguez closed his order with a stern reminder that despite not being placed back under federal supervision Texas still had to follow the Voting Rights Act and comply with constitutional requirements in its next redistricting cycle. Rodriguez said the court had the authority to “bail in” Texas to federal supervision, and while it did not do so in this case, it could in the future.

“Texas would be well advised to conduct its redistricting process openly, with the understanding that consideration of bail-in is always an option for whatever federal court or courts may be tasked with review of future legislative actions,” he wrote.

Texas Attorney General Ken Paxton celebrated the federal court’s decision.

“This court ruling is a win for our Constitution and the right of Texans to govern themselves,” Paxton said in a prepared statement. “The plaintiffs’ requests for bail-in were based on plans that were adopted by the Legislature in 2011, never used in any state election, and repealed more than six years ago. We are thankful that today’s decision finally puts an end to this baseless challenge.”

Nina Perales, a lawyer with the Mexican American Legal Defense and Education Fund that represented some of the plaintiffs, said she was disappointed by the court’s decision but that the plaintiffs had won significant victories in the eight-year-long case, such as winning multiple constitutional claims and establishing several violations by the state of Texas that could carry into any legal battles over the 2021 redistricting cycle.

Her team was still evaluating a potential appeal of the decision, she said, but added that the current order would make fighting voting rights battles in the next round of redistricting more difficult.

“The fact that we don’t or may not have pre-clearance for the upcoming round means that the burden will shift to minority groups and minority advocates to hold Texas accountable in federal court,” she said. “It’s more work for us.”

Gilberto Hinojosa, the chairman of the Texas Democratic Party said in a written statement he was disappointed that the court could not provide further remedies “to right the wrongs that Texas Republicans have imposed on the people of our great state. But our resolve has never been stronger.”

Moving away from the court and toward a political fix, Hinojosa said his party must win state and federal elections next year to ensure “that every Texan has fair and equal representation.”

“This election, our democracy is at stake and we will fight like our lives depend on it, because they do,” he said.

Justin Levitt, an election law professor at Loyola University and a former attorney for the U.S. Department of Justice under Barack Obama, said the court’s decision gave state legislatures a green light to discriminate against minorities and suffer very few consequences.

“I don’t know why Texas wouldn’t learn from this decision that it is fine for them to spend taxpayer money entrenching themselves in office by discriminating based on race,” he said. “The Texas legislature has a problem, in the criminal justice system we’d call them a recidivist. It has repeatedly drawn district lines to the detriment of minority communities and it’s only when courts or administrators have enjoined them from doing so that they have taken it back.”

The court’s decision, Levitt said, left minority voters in the state without any protection from a Legislature that had repeatedly discriminated against them and would force them to continue to spend years of time and effort as well as large sums of money to prove their case. State legislators, he said, would continue to fight those cases with “house money” raised from some of the taxpayers who’d been harmed by the discriminatory actions.

“I think the message being sent is ‘Don’t worry there are no consequences,’” Levitt said.

While the court found “sufficient violations to potentially trigger” placing the state back under federal supervision, it cautioned that the use of such a tool would be an “extraordinary remedy” and a “strong medicine” that should only be used in exceptional circumstances.

The existence of these violations — such as intentional findings of discrimination in the 2011 electoral maps and in the state’s voter ID law — was not enough to place the state under federal supervision. They had to be “violations justifying equitable relief.” The 2011 maps had never gone into effect, so those could not be acted on and the state had remedied issues with the voter ID law after courts found it discriminatory.

And since the Supreme Court did away last year with the three-judge panel’s finding that the state had intentionally discriminated against minority voters in its re-drawing of electoral maps in 2013 which are the ones currently in place, Rodriguez said his panel had no violation that justified the plaintiffs’ requested relief.

“Although this Court may disagree about the lingering effects of discrimination from the 2011 plans, the clear import of the Supreme Court’s opinion is that nothing further remains to be remedied, and this Court is bound to follow that opinion,” Rodriguez wrote.

———

©2019 The Dallas Morning News

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