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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Last week, the State of Texas filed a brief responding to arguments that Texas should be ‘bailed in’ to preclearance coverage under section 3 of the Voting Rights Act. 

The brief makes any number of technical and procedural arguments, and the courts will have to sort through those in due course.

But it’s worth pausing to consider two of the more far-reaching claims in the brief.

Claim: It’s Not the 1960s

The first of these is the claim that the Supreme Court’s decision in Shelby Co. means that ‘bail in’ under section 3 is now limited to situations like those that existed in the Deep South in the 1960s and that:

To suggest that Texas has engaged in or will engage in 1960s style ‘common practice of staying one step ahead of the federal courts by passing new discriminatory voting laws’ is absurd on its face.

Now, set aside, for the moment, Texas’ recent history of doing things like trying to re-draw CD-23 - in not one but two successive redistricting cycles - to take away the ability of Hispanic voters to elect their candidate of choice. Or its long record of other Voting Rights Act violations.

Instead, stop and ponder this: Texas wasn’t originally subject to preclearance under section 5 of the Voting Rights Act.

That’s right. Although it’s sometimes forgotten today, Texas didn’t become covered under section 5 until the 1975 amendments to the Act.

In other words, for all the real problems Texas had in civil rights era, its record was nothing like that of places like Lowndes County, Alabama, which in 1965 was 80% African-American but had managed to have not a single African-American registered voter.

Instead, as Congresswoman Barbara Jordan explained in the floor debate on the 1975 amendments, discrimination in Texas took a subtler form. While Texas may not have employed more obvious devices like literacy tests: 

School boards which have been abolished or reduced in order to prevent minority membership on the board; redistricting legislation which focuses on multimember districts; polling places removed without notice; annexation by cities and counties in an effort to dilute minority votes; that is what is happening.

If Attorney General Abbott is right in his interpretation of the permitted reach of section 3, it would be a very narrow reading indeed  - one so restrictive that it would have excluded Texas from being covered by section 5 in the first place.

And it would set conditions for imposition of preclearance unlikely ever to be met since it is practically impossible to envision a return to the conditions of 1960s Mississippi or Alabama.

The Supreme Court, of course, will have the final word - but have no doubt General Abbott is asking for a sweeping limitation on the power of the federal government to enforce the 14th and 15th amendments.

Claim: It’s Just Partisan Politics

Attorney General Abbott’s second claim is in many ways even more fundamental because it gets to the heart of what the Voting Rights Act is supposed to do.

That claim asserts that:

[R]edistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats … [They] were motivated by partisan rather than racial considerations.

To be fair, the claim is not a new one. It’s one the state has made from the very outset of the redistricting litigation.

And given that the Supreme Court has yet to recognize the existence of a legally cognizable constitutional claim for partisan gerrymandering, it’s probably about as good as place for the General Abbott to make his stand as any.

Of course, as one commentator has pointed out, the partisanship/ethnicity question is not always a clear “either/or” one:

So, here’s the question the federal courts must decide: When the white party uses its legislative authority to undermine the brown and black party, is that a racial act or merely a political one?

But as good as that question is, there’s something even more basic at stake.

When people like General Abbott say that they would be fine with non-Anglo people if they would just vote Republican, they are, in essence, dictating the terms for African-American and Hispanic voters to have a seat at the table.

Think about it this way: It’s not very much different than if the staunch segregationists of the 1960s had said to African-Americans, we will let you vote but you must vote for candidates who will support the continuation of segregation - and who won’t stir up things too much by asking for better working conditions or increased wages. But the minute you deviate from what the Anglo majority thinks is the right path, we will use gerrymandering and other tools to make sure your power is curtailed.

That, of course, would have been a ridiculous and unacceptable proposition in 1963. But so is General Abbott’s in 2013. 

The core purpose of the Voting Rights Act is to make sure that groups who have been marginalized, and who have had trouble obtaining power, don’t have the playing field stacked against them.  

Which is not to say that doing right by those groups means that Republicans should cede the field to Democrats. Far from it.

But when the State of Texas does things like surgically carving out the most heavily Hispanic parts of Tarrant County (see below) and putting them in a district controlled by suburban Anglos in Denton County, it does more than ensure another Republican seat.  It ensures that the authentic voice of a key - historically powerless - community will be submerged and lost.  


It bears repeating: Making sure those voices don’t get shut out doesn’t necessarily mean drawing districts that are a permanent lock for Democrats.

But it does mean drawing more natural districts, less driven by hyperpartisan considerations, where more of the healthy “hem, haw, and trade” of politics can take place - and where Republicans and Democrats can compete to most convincingly address the concerns of non-Anglo voters on issues, be it immigration, health care, education, or something else.

And as the Economist wrote today, the result would undoubtedly be a better one for both Republicans and non-Anglos alike:

The sooner Republicans start competing for black and Hispanic votes and stop trying to keep blacks and Hispanics from voting, the better their and America’s future.

On the other hand, if Texas Republicans insist on continuing to try to minimize non-Anglo voices because they don’t agree with them and don’t even want to have a dialogue (or, more to the point, because some Republican primary voters don’t want to have that dialogue), then they increase the risk that Texas not only will get bailed in but that it will stay bailed in. 

  1. texasredistricting posted this