TEXAS REDISTRICTING & ELECTION LAW
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Michael Li,
michael.li@nyu.edu, 646-292-8360.
In papers filed this evening, the Department of Justice and individual parties sharply criticized the standard the State of Texas wants the D.C. panel to use in evaluating arguments about ‘retrogression’ in the state’s redistricting maps.
Calling the state’s proposed standard “arbitrary,” the Justice Department argued that “determining whether a minority group has the 'ability to elect’ a candidate of choice under Section 5 is not as simple as looking at a discrete set of population figures. 'The legal standard is not total population, voting age population, voting age citizen population or registration, but the ability to elect.’” [DOJ, p. 4]
Saying that the state’s “analysis of 'ability to elect’ in both the State House and Congressional plans consists only of a rote application of a population formula,” the DOJ accused the state of confusing 'ability to elect’ districts under section 5 of the Voting Rights Act with 'minority opportunity districts’ under section 2 and thus “conflating Section 5 with Section 2 of the Voting Rights Act, which the Supreme Court has repeatedly advised against.” [DOJ, p. 5] “Determining whether the ability to elect exists 'requires a functional analysis of the electoral behavior in the particular jurisdiction or election district.’” [p. 6]
The DOJ points out the analysis performed by the state for the court is, in fact, contrary to the advice it received from the Texas Legislative Council.
According to DOJ, the state’s proposed house map reduces the number of ability to elect districts from 50 to 45 or 46.
The DOJ argues that the state’s proposed congressional map also is retrogressive, especially in light of “an almost unprecedented increase in the number of seats in its congressional delegation - four - resulting from a State population increase fueled mostly by the increase in the State’s Hispanic population.” [DOJ, p. 21-22]
According to DOJ, “[u]nder the proposed plan, Hispanic voters will lose ground in their existing ability to elect candidates of choice … even though the number of Hispanic majority districts remains the same [at] seven,” pointing to what it says are problems in CD-23 and CD-27. [DOJ, p. 23-24]
The DOJ also disagreed strongly with the state on discriminatory intent arguing that there is “direct and circumstantial evidence” that “both plans were enacted with discriminatory purpose.” This evidence, the DOJ says, includes “setting boundaries [for districts] at a level of detail where race is the only available data and substituting low-turnout Hispanics for higher ones” as well as numerous issues with the “secretive” process by which the maps were drawn.
Intervenor groups echoed the DOJ in their briefs, calling the state’s retrogression analysis “simplistic” and accusing the state of improperly trying to shirk its burden of proof on discriminatory intent issues.
The state has until October 31 to file a reply. The D.C. panel holds oral argument on the state’s request for a judgment in its favor on November 2.
Here are the parties’ briefs:
DOJ:
Intervenors’ joint brief:
Gonzales intervenors:
LULAC/MALC:
NAACP/Texas Legislative Black Caucus/African-American members of Congress:
