Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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On Monday, the parties in the Texas redistricting case in San Antonio had their first opportunity to flesh out positions on the issues courts will have to confront in deciding whether to use the “pocket trigger” in section 3 of the Voting Rights Act to impose preclearance coverage on jurisdictions, like Texas, that are no longer subject to preclearance under section 5. 

A look at what they said in their briefs.

What exactly does section 3 require in terms of a legal showing?

The threshold question, of course, is what exactly does section 3 mean?

The statutory text of section 3(c) of the Voting Rights Act says a court can order bail-in in a “proceeding instituted by the [United States] Attorney General or an aggrieved person” if it finds “that violations of the fourteenth or fifteenth amendment justifying equitable relief have occurred within the territory of such State or political subdivision.” (emphasis added)

The statute, however, is silent as what standards courts should use to decide when such equitable circumstances might exist.

To help answer that question, the redistricting plaintiffs pointed the San Antonio court to the multi-part test developed in 1990 by the Eastern District of Arkansas in Jeffers v. Clinton, which they described as the most developed case on section 3 to date. 

Under the Jeffers test, a court considering a bail-in claim would ask - and balance the answers to - six questions:

Have the violations been persistent and repeated? Are they recent or distant in time? Are they the kinds of violations that likely would be prevented, in the future, by preclearance? Have they already been remedied by judicial decree or otherwise? How likely are they to reoccur? Do political developments, independent of this litigation, make reoccurence more or less likely?

The plaintiffs also cited Jeffers for the proposition that section 3 did not require direct proof of discriminatory intent or that discriminatory intent be the sole motivating factor for a legislative enactment. As argued in the brief of the Mexican-American Legislative Caucus:

In discussing the burden on a Plaintiff and the type of evidence that would be relevant in its inquiry, the District Court in Jeffers stated:

'It need only be one of the motivating factors but for which the action would not have been taken. In addition, there will rarely be direct proof of the forbidden motive. Courts must be sensitive to circumstantial evidence from which a reasonable inference of discriminatory intent may be drawn. That a given action has a disparate impact, and that State officials knew that it would, can in a proper case, depending on the other proof in the record, be an important part of such circumstantial evidence - especially if there is no reasonable nondiscriminatory justification for what has been done. Finally, we should not allow a natural reluctance to attribute illicit motives to high State officials to deter us from our duty. The burden of proof is not artificially high. It is only the ordinary civil burden of proof.' Jeffers, 740 F. Supp. at 589.

Likewise, the Texas Latino Redistricting Task Force told the court in its brief, “The violations of the Fourteenth or Fifteenth Amendments can include past or present discriminatory acts by the defendant; the violations also need not have been the subject of the litigation in which the section 3(c) remedy is sought.”

The joint Quesada, et al. brief similarly explained:

The court in Jeffers rejected the defendants’ arguments that other constitutional violations, not directly related to apportionment, were not pleaded in the complaint and were otherwise irrelevant to the 3(c) decision before the court. The court acknowledged that plaintiffs were, from the outset, clearly trying to prove a pattern of statutory and constitutional violations, resulting in a reduced opportunity for black voters to participate in the political process, and defendants had a full and adequate opportunity to offer proof on all those issues.  The court specifically concluded that ‘[t]he phrase ‘violations of the fourteenth or fifteenth amendment justifying equitable relief,’ which the statute uses as the triggering condition for pre clearance, is not limited at all.’

The Jeffers court also concluded that local violations, in addition to state violations, of the voting guarantees of the Fourteenth and Fifteenth Amendments must be taken into account. Section 3(c), the Jeffers court observed, does not say that the State or its officials must be guilty of the violations, but only that the violations must ‘have  occurred within the territory’ of the State.’

What’s the argument for covering Texas?

African-American and Hispanic plaintiffs argue that Texas should be covered under section 3 both because of problems with the 2011 maps drawn by the Texas Legislature as well as what they cite as the state’s long history of voting rights violations.

The heart of the claim centers around the 2011 maps:

[T]he history of Texas’ discrimination reinforces the urgent need for pre-enforcement review of Texas voting changes, but this Court need not travel far back in time to identify ample justification for application of the bail-in provision - the evidence presented to this Court in the course of this litigation led this Court to make preliminary findings of intentional discrimination. Now  … this Court may formally make findings and rule on Plaintiffs’ Section 2 and Equal Protection claims.

However, African-American and Hispanic plaintiffs’ briefs also point to number of other voting problems including:

* Language in the Supreme Court’s 2006 opinion in LULAC v. Perry suggesting that the state’s treatment of CD-23 in the DeLay mid-decade redistricting “bears the mark of intentional discrimination” because “[i]n essence the State took away the Latinos’ opportunity because Latinos were about to exercise it.”

* The fact that 12 of 15 of the redistricting plans adopted by the Texas Legislature since 1971 have been found to have been racially discriminatory in effect or intent demonstrating a “pattern of enacting unconstitutional redistricting maps, persisting to the present day, [which] suggests such conduct will likely recur.”

* The Justice Department’s conclusion that a discriminatory purpose motivated Texas’ 2011 voter ID law. (The three-judge panel in the preclearance case on the voter ID law, however, did not need to reach the intent question because it concluded the law had a discriminatory effect.)

* The Justice Department’s refusal in 2012 to preclear a redistricting plan for the Nueces County commissioners county based on a finding of discriminatory intent as well as retrogressive effect.

* The Justice Department’s blocking of Spanish language election procedures in Gonzales County both in 2009 and 2010 and in Runnels County in 2010 on grounds of discriminatory intent.

* The 2012 refusal of the Justice Department to preclear a plan in Galveston County to reduce the number of justices of the the peace and constables on grounds of both retrogression and discriminatory intent.

* The appointment of federal election observers in Ector County (2005), Hale County (2006), Brazos County (2006), Galveston County (2007), and Fort Bend County (2009).  

The State of Texas’ counter-arguments

The State of Texas has until August 1 to file a response to the redistricting plaintiffs’ briefs on section 3, but its opening brief laid out a number of procedural and substantive hurdles it said made relief under section 3 inappropriate.

The crux of the state’s argument is that section 3 coverage requires the predicate of a finding in a final judgment of a violation of the 14th or 15th amendments with respect to the claims before the court - i.e., in this case, the 2011 maps.

The state argues that no final judgment exists with respect to the 2011 maps and that none can be come to exist now that the D.C. court’s preclearance decision has been vacated and now that the state has mooted  claims in the San Antonio court court about the 2011 maps with its adoption of the 2013 maps. 

The state also rejects the notion that past conduct is relevant to a section 3 analysis, citing the federalism concerns surrounding preclearance have noted in the section 5 context and pointing out that Jeffers was handed down before the Supreme Court’s decisions in NAMUDNO and Shelby County.

Instead, under the state’s theory:

The only claims for which the plaintiffs can be ‘aggrieved’ at this point are the claims against the newly enacted legislative maps … But the Court cannot order bail-in on the plaintiffs’ claims against the 2013 maps [at this time] because there has been no finding that these maps violate the voting guarantees of the Fourteenth or Fifteenth Amendment, nor has the court awarded any relief on those claims.