TEXAS REDISTRICTING

The Justice Department has filed a brief in the San Antonio case, explaining DOJ’s position on what the Supreme Court’s opinion requires the San Antonio court to do when addressing section 5 concerns in the course of drawing interim maps.

The brief can be found here.

As a starting point, DOJ argues that the very fact that the D.C. court ordered the preclearance case to trial supports the conclusion that there is a ‘reasonable probability’ of section 5 violations under the standard announced by the Supreme Court:

And here, where the District Court for the District of Columbia denied the State’s motion for summary judgment and proceeded to trial on the Section 5 challenges, the challenges to the State’s plans certainly are not insubstantial.  Indeed, the D. C. Court’s denial of summary judgment more than establishes a reasonable probability that the State’s enacted plans will fail to gain preclearance. 

On specific section 5 claims, DOJ argues that there is very substantial evidence of discriminatory intent in the submersion of urban minority voters in larger suburban or rural Anglo-dominated districts, pointing out that that the Supreme Court itself said in its opinion that such areas appear to be the subject of ‘strong challenges’:

This Court likewise should not follow the State’s policy judgments with respect to certain districts in the Congressional and State House plans on the basis of evidence that the State intentionally replaced politically active Hispanic voters previously in those districts with less mobilized Hispanic voters.  See Texas v. United States, U.S. Opp. Mem. at 12-13, 32 (House District 117 as an example of such action); id. at 24-25, 37-38 (Congressional District 23 as an example of such action).  The loss of minority ability-to-elect districts under the State House plan (Districts 33, 35, 41, 117, and 149) also suggests that the State acted with a discriminatory purpose in enacting its plans.  See id. at 30.  This Court likewise should decline to incorporate the State’s race-based actions with respect to districts or counties in which the State cracked large Hispanic populations, or pulled strangely shaped minority populations out of certain districts, in order to submerge minority voters in larger Anglo populations, thereby reducing minority voting strength.  The Supreme Court noted that those districts “appear to be subject to strong challenges” under Section 5.  Cf. Perry v. Perez, slip op. at 10 (citing U.S. Opp. Mem. At 38).  See also Texas v. United States, U.S. Opp. Mem. at 31-32 (in the House plan, for example, evidence of cracking in the Dallas-Fort Worth area and use of precinct-level racial data in proposed District 41); id. at 38 (in the Congressional plan, evidence of discriminatory purpose in the enacted Dallas-Fort Worth districts).

On retrogression, DOJ argues that a cautious approach would be to maintain the current number of ‘ability to elect’ districts as determined in the DOJ’s model.  That would mean 50 minority state house seats (as opposed to what the DOJ says are only 45 under the state’s map) and 11 minority congressional seats (as opposed to the 10 that DOJ calculates under the state’s map).