Taking the Long View on the Governor’s Indictment

One way to stir up excitement and interest in public law is to get a grand jury indictment of a sitting Texas Governor – it’s the sort of thing that happens every 97 years or so, and it certainly gets people’s attention. And one cannot help but enjoy a bit of schadenfreude when the target of such an indictment happens to be a former Aggie cheerleader who has made a career of Louisiana-style cronyism while espousing appallingly bad political ideas in order to attract support from people who thought George W. Bush was too cerebral.

But I have to reluctantly agree with a number of legal critics that the indictment (http://www.scribd.com/doc/236935338/Rick-Perry-Indictment-via-KXAN) is a stretch, based on the history of the criminal statutes that the prosecutor has relied upon.

Governor Perry was indicted on two criminal counts, as follows:

I. COUNT NUMBER ONE – First Degree Felony – Abuse of Official Capacity

The first count (Abuse of Official Capacity) is a daring interpretation of Section 39.02 of the Texas Penal Code, which criminalizes (1) a public servant’s (2) intentional or knowing (3) misuse of government property under the servant’s control (4) when done with the intent to harm another person. Here’s the statute in question: http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.39.htm#39.02

The indictment alleges that (1) Governor Perry (a public servant) (2) intentionally or knowingly (3) threatened to withhold around $7.4 million in government funds (i.e., the government property) that had been appropriated by the Legislature for the Travis County District Attorney’s Office, in order to (4) harm the Travis County District Attorney. The “intentional or knowing misuse” in this case is alleged to be the politically vindictive veto of the budget line item in the General Appropriations Act passed by the 2013 Texas Legislature.

This criminal charge doesn’t seem particularly sporting or cricket at first glance, given that the Governor’s innate and reflexive political vindictiveness has never been deemed anything other than a moral outrage before now. Why is this veto so special as to merit criminal prosecution when none of Perry’s other vetoes ever led to criminal charges?

I suspect that the prosecutor’s argument will be that this particular veto is different because (1) it was not a veto of a policy statement or change in the law, but a veto that functioned to intentionally misdirect statutorily mandated and previously earmarked State money, and that (2) this veto was the explicit execution of the Governor’s clear and plainly-stated threat to punish the voters and taxpayers of Travis County in retaliation for the Travis County D.A.s refusal to resign her elected office, and was self-interested political payback with a dual motive, because the veto not only would have punished Travis County voters, but would also have shut down the very Public Integrity Unit that is responsible for investigating crimes of official misconduct committed by Texas public officials.

(A brief explanation as to why the Travis County D.A. has jurisdiction over crimes of official misconduct may be in order for some visitors. The State of Texas is regarded as having it’s official “home” in Austin, Texas, which is in Travis County. Crimes of official misconduct are regarded as crimes committed against the State of Texas – the State is therefore the victim, and because the State “lives” in Austin, the Travis County D.A. has jurisdiction over these crimes, even when committed by officials anywhere else in Texas. By law, the State pays the cost of this extra statewide investigative work that gets imposed on the Travis County government, given that the extra work is burdensome (most counties don’t have to conduct statewide investigations) and is imposed as an incidental consequence of the county’s political geography).

Why is this crime a first degree felony?

Like a lot of property-related offenses, this crime has a range of punishments depending on the value of the misused State property in question. Because the vetoed legislative appropriation was for (a lot) more than $200,000, and that level of money determines the severity of the offense, this specific indictment is alleging the commission of a first degree felony. That’s the kind of indictment that can knock stories about Ebola epidemics and Justin Bieber’s comeback tour right off the front page of the paper.

II. COUNT NUMBER TWO – Third Degree Felony – Coercion of Public Servant

(News sources I’ve seen have indicated that the second count is described as a third-degree felony, which indicates that the prosecutor’s intent is to argue that Governor Perry threatened to commit a felony. That’s because unless the charge is enhanced by the assertion that the Governor’s threatened act (vetoing the budget line item) is a felony, this would be a Class A Misdemeanor).

The second count is an equally audacious application of Section 36.03 of the Texas Penal Code (http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.36.htm#36.03), which criminalizes the (1) use of coercion (2) by a person to (3) influence, or attempt to influence (4) a public servant (5) in a specific exercise or specific performance of that public servant’s official duty or (6) to violate the public servant’s known public duty.

If you looked at the text of the statute supplied by the Texas Legislative Council, you probably noticed the last paragraph of that law. Subsection (c) provides a blanket exception to the crime of coercion of a public servant if the person doing the coercion is the member of a governing body, and if the influence is being applied in the form of an official action taken by the member of the governing body.

Gentle readers, Section 36.03(c) is going to be a huge hurdle for the prosecution to clear, given that a veto is a decidedly official act when performed by the Governor. Admittedly, the Governor isn’t a “member” of a governing body in the usual sense – he’s not one of several people co-exercising the power of the State’s executive office. But he is the titular head of the Executive Branch, and he is authorized by the Texas Constitution to veto line item budget appropriations.

Here, the prosecutor is alleging that (1) the threat to veto funding of the Public Integrity Unit (the coercion) was used by (2) Governor Perry (a person) to (3) force (influence) (4) Rosemary Lehmberg (a public servant) to (5 or 6) resign from her elected post as Travis County D.A. (specifically exercising her official duty or violating her known public duty to continue to serve as D.A.).

Well, there was definitely a threat in there, and it was definitely applied to influence the Travis County D.A. to quit her elected office. And (at least in everyday parlance) the threat was coercive – “Quit, or else.”

“Coercion” is a defined statutory term in this context (the relevant portion of the definition is found in Section 1.07(a)(9)(F) of the Texas Penal Code. http://www.statutes.legis.state.tx.us/Docs/PE/htm/PE.1.htm#1.07. Notice that in the context of Texas criminal law, the threat to take or withhold action as a public servant is automatically coercive.

So how will the prosecutor maneuver through the rocky shoals surrounding the second count? I imagine the prosecutor will argue that while the act of vetoing legislation is in general a sanctioned legal act of the Governor, that this specific veto was illegal (because it was a misuse of State funds), and therefore this veto can’t be described as an official act performed by the member of a governmental deliberative body. The veto itself needs to be an illegal act, because if the veto wasn’t illegal, than the threat of the veto would only have supported a Class A misdemeanor and not a felony charge.

And it’s felony charges that help get this lawsuit onto the front page of the New York Times.

III. THE ORIGINS OF THE PENAL STATUTES IN QUESTION

“Coercion of a Public Servant” and “Abuse of Official Capacity” are not new crimes – they have existed in roughly their current wording since the adoption of the 1973 Texas Penal Code, which was itself closely modeled on the 1925 Texas Penal Code (for the 1925 laws, see the State Law Library resources at http://www.sll.texas.gov/library-resources/collections/historical-texas-statutes-%281879-1925%29/1925/).

People tend to forget that Texas has used a formal penal code and associated code of criminal procedure since 1856, but even those who know about the 1856 Texas Penal Code are often unaware of how closely all the subsequent state criminal codes were modeled on the general organization and structure of the 1856 laws.

Although the 1856 Penal Code doesn’t contain crimes that are exact analogues of the “coercion” statute and the “abuse of official capacity” statute, the older law does encompass the two divisions of public crimes from whence the current statutes sprang, those divisions originally being referred to as crimes of office and crimes of public justice.

(The endlessly entertaining 1856 Penal Code (with whole sections devoted to dreadful punishments (whipping and castigation for poor demeanor or to aid in the instruction of children! Pillories and hanging for horse thievery!) and reminders of pre-Civil War barbarity (crimes associated with assisting escaped slaves! Disparate punishments for freedmen!) is available in its entirety through the Texas Legislative Reference Library, here: http://www.lrl.state.tx.us/scanned/statutes_and_codes/Penal_Code.pdf

“Abuse of Official Capacity” is, at its heart, a property crime – it is a malfeasance of office that materially affects things of value that are owned by the State. In that respect, the current crime is a descendant of extortion and misapplication of tax revenue, and related crimes such as embezzlement and theft of State land titles. One can see the statute begin to stretch and tear at the seams – it’s a property offense which is being repurposed from criminalizing the misuse of State property to punishing the vindictive use of gubernatorial veto power.

And “Coercion of a Public Servant” is, at its heart, a crime against public administration. It is a fraud or manipulation of public institutions for private ends, and shares textual DNA with crimes like bribery and perjury. From the indictment, one can also see this statute start to pucker and collapse as it is put to a new use categorizing a particular veto as a criminal act.

I’m popping up a big vat of popcorn and settling in for what should prove to be entertaining legal fireworks, no matter what the outcome may be.

 

The Voting Rights Act, Preclearance, and Redistricting – Historical Analysis and Critique

In partial satisfaction of her Ph.D., Keesha Middlemass published a dissertation in 2004 that surveyed a specific area of government regulation under the Voting Rights Act. That dissertation (available online through the library of the University of Georgia, at https://getd.libs.uga.edu/pdfs/middlemass_keesha_m_200405_phd.pdf). wasn’t the first scholarship that surveyed the contents of preclearance letters issued under Section 5 of the Voting Rights Act, but it was (as far as I can tell) the first survey that looked specifically at how the Department of Justice’s approach towards the preclearance of or objection to state and local government redistricting plans evolved from the 1960s through the 1990s.

(For those of new who are new to all this talk of “preclearance” and “Section 5″ of the Voting Rights Act, a short summary of this topic can be found here:  http://www.justice.gov/crt/about/vot/redistricting.php).

In the wake of Shelby County v. Holder, and with the passing of years, one might ask what relevance Ms. Middlemass’s dissertation still holds. The relevance I see is in the dissertation’s documentation of the early and consistent tendency of conservatives to ascribe partisan (i.e., liberal) motives to the generally non-partisan enforcement of the Voting Rights Act, the consistency with which the Department of Justice internalized court decisions relating to redistricting, and the evolution of the administrative guidance (at 28 C.F.R. Part 51) written by the Department of Justice in the wake of a general failure by Congress to provide any sort of specific statutory framework for enforcement of these civil rights laws.

All of these  issues remain very much in the front and center of the redistricting debate, even after Shelby County.

I. Methodology and a hint to future researchers

For raw data, Ms. Middlemass sampled 431 written responses by the Department of Justice to preclearance requests associated with state and local redistricting plans. In presenting her sample, the author admitted both that (1) there had to be more approval letters than just the ones she found, but owing to the Voting Section’s notoriously awful filing system, no one could say where the missing letters were. The letters spanned a period between 1970 and 2000, and whether they were a complete sample or not, they displayed a distinct stylistic trend.

There are a couple things that the researcher could have done to beef up her data a little bit. First, in Texas and in other states, state-law equivalents of the Federal Freedom of Information Act generally allow for the retrieval of public documents, such as the complete correspondence files exchanged between local governments and the Voting Section at the Department of Justice. Since part of Ms. Middlemass’s effort was to determine which factors the Department of Justice used in decided to reject a preclearance plan, having the other side of the correspondence would have been helpful.

Second, the problem of missing approval letters may not have been as critical as it appeared. The laws relating to preclearance under the Voting Rights Act provided that the Department of Justice had a 60-day deadline to respond to preclearance requests, or (in effect) forever hold their peace. From time to time, depending on staffing levels and the complexity of the issues being reviewed, relatively non-controversial redistricting efforts may not ever have generated any explicit approval letter, since silence is the same thing as approval.

II. What the research found

Here’s what I took away from this dissertation:

  • The Department of Justice serves many competing political interests, and has to walk a tightrope across the partisan divide in order to retain funding and legal authority. At various times, the Executive Branch (during the Nixon and Reagan eras), Congress (when partially or wholly controlled by Republicans), and the courts (e.g.,the U.S. Supreme Court during Rehnquist’s tenure after the Warren and Burger eras) have been hostile to all or part of the idea of preclearance under Section 5 of the Voting Rights Act.
  • The assertion that the Department of Justice flaunts it’s power by ignoring Federal court mandates that limit what constitutes voting discrimination, and that the agency improperly tries to force political entities to create a surplus of new minority-ability single-member districts is an old canard, dating back to the 1970s.
  • Except for a brief time prior to a substantial limiting of the Voting Rights Act’s requirements (before the Supreme Court took a decidedly more restrictive tack, and adopted the doctrine that redistricting was only infirm if it made minorities worse off than they had previously been), the Department of Justice has been scrupulously careful not to require the creation of new minority-ability voting districts.
  • The Voting Rights Act created a number of political vulnerabilities for the Department of Justice, not least of which was the fact that the law didn’t give the Department any explicit rule-making authority to implement the statute, and didn’t include any guidance on how “preclearance” was supposed to work. To the extent that the Department is subjected to criticism for overreaching its authority, that criticism is opportunistic and is made possible by the functional consequences of Congressional inability to actually draft a preclearance law.
  • The explicitly temporary nature of the Voting Rights Act also tends to leave the Department of Justice vulnerable, given that the jurisdictions subject to Section 5 preclearance under the Act initially gave reluctant Congressional support to the passage of the Act only because they thought that the law would go away by 1970. The law kept getting renewed in part because with the sole exception of the Voting Rights Act, the last century and a half of U.S. political history has been marked by a Congress that is institutionally incapable of otherwise bringing a conclusive and lasting end to racial discrimination in voting.
  • Contrary to the explicit requirements of the Voting Rights Act, noncompliance with the law was widespread below the state level. Many, many covered Section 5 jurisdictions conducted annexations, adopted redistricting plans, and made other election-related changes without ever submitting those changes to the Department of Justice.

2004 may seem like ancient history to some, especially since we currently have no such thing as “preclearance,” and now face a civil-rights landscape very much like the one that existed before 1965, where each individual illegality has to be challenged in court, expensively, inefficiently, and one wrong at a time. But scholarly analysis and debate about how the Section 5 preclearance process was applied can help us figure out what kind of civil-rights enforcement mechanisms we need to create and protect from the vagaries of partisan politics right now.

If we don’t hang together, we will all surely be hung separately.

 

Update on Irving ISD Voting Rights Suit

I’ve previously written about a lawsuit brought on behalf of Hispanic voters in Irving Texas (http://texaselectionlaw.wordpress.com/2014/07/29/irving-isd-redistricting-lawsuit/), concerning the way in which the Irving Independent School District has drawn its districts.

Today, media in the Dallas-Fort Worth area are reporting that the plaintiffs have prevailed. The story is available here: http://www.irvingweekly.com/s/1705/Judge-Finds-Irving-School-District-is-in-Violation-of-the-Voting-Rights-Act-.php

The outcome of Benevides v. Irving I.S.D.  isn’t particularly surprising – as I mentioned in the related post, witnesses for the defense gave testimony that was both astonishingly candid and also embarrassing for the district.

One trustee opined that he didn’t think the Voting Rights Act applied to his district, and gave the impression that he didn’t really care if it did. In addition, a former trustee (while generally more sympathetic to the complaints of Hispanic voters) took the tactically unwise position that Hispanics just never bothered to run viable candidates. Given that one of the plaintiffs happens to be a candidate who has run unsuccessfully for the school board three times, and given that the entire school board is white while 70% of the district is Hispanic, the “blame the victim” tactic was probably not the one to go with.

The school board is reported to be reviewing its options with its attorneys.

Although I’m loath to hand out legal advice gratis, I’ll give this piece of considered professional advice to Irving I.S.D. absolutely free.

Here it is:

Save your money, take your lumps, and embrace a rational 7-0 plan (i.e., elect your trustees from seven single-member districts).

You’re welcome.

 

Two Recent Stories of Interest to Texas Voters

Although many of you no doubt are already aware of these stories, I thought they deserved to be highlighted. The first is from Rick Hasen, and concerns the rather outré argument made by the State of Texas in its response brief in the voter picture I.D. case.

Taking a page from the legal scholars at Breitbart, Texas argues that the Department of Justice is, like, mean and stuff, and has been picking on Texas for partisan gain, not because the State repeatedly breaks the law. That’s not the surprising part. The surprising part is that this is the centerpiece of the State’s argument that the Department of Justice’s lawsuit should be thrown out. As Professor Hasen dryly notes, arguing that one’s opponent is motivated by politics is not a recognized affirmative defense to Voting Rights Act claims. The story is here: http://electionlawblog.org/?p=64248

The second story is an editorial by political reporter Charles Kuffner musing on the path that race-based redistricting took in Alabama, and how Republicans successfully isolated and marginalized African-American voters by targeting white Democrats for removal. That story is here: http://offthekuff.com/wp/?p=62179

The reason why I found the story interesting and troubling is that to some extent the plaintiffs in the Texas redistricting suit are working at cross-purposes, especially with respect to redistricting in the Dallas-Fort Worth and Houston area. Black congressional districts got more “efficient” (meaning that they are virtually guaranteed to go to candidates favored by black voters), but at the expense of turning all the other districts in the area more solidly Republican. Blacks didn’t lose any seats, but are likely to be alone and further marginalized as members of the Texas Congressional House delegation.

I agree with Mr. Kuffner that the potential for Alabama-style race-based redistricting succeeding as a tactic in Texas should rouse voters to make a smart change in state leadership this November.

How I Would Have Worded The Section 5 Preclearance Request For the 2011 Redistricting

In late 2010, my coworkers and I negotiated with our boss how we would go about dividing up the work of doing preclearance submission letters on new legislation produced by the 2011 Texas Legislature.

In the now-misty days before Shelby County v. Holder, the biannual “who gets to do what kind of Section 5 letters” staff meeting was a seasonal marker like the turning of the leaves.

Knowing that the Legislature would produce hundreds of election-related laws, and that these laws would have to be submitted for preclearance, every other year, my boss would feel out the preferences and habits of the attorneys under her supervision, to figure out how to divide up the work fairly and not leave anyone too overwhelmed or underworked.

Over doughnuts and juice, we picked out the general topics that we would cover. With a bit of good-natured razzing from the other attorneys (because the long-timers in the office knew what a minefield it would be), I got assigned the job of doing the Section 5 submission on redistricting. No one knew it at the time, but my workload was about to get a whole lot lighter.

By the time the redistricting bill had passed and been signed into law, the State’s Republican Party leadership had decided to take the unusual and legally provocative step of seeking court-ordered preclearance, rather than submitting a preclearance letter. In the short term, the Attorney General’s intervention in the process meant that I could sit back and watch, bemused, as the litigators at the A.G.’s office filed aggressively-worded briefs in the D.C. district court.

But in some significantly less litigious alternate universe, another version of me might have taken the first pass at the Section 5 preclearance letter.

I’m not so presumptuous as to think that my draft would look like the version of the letter that would ultimately have been submitted – redistricting is and has always been way too much of a partisan powderkeg for any of its working parts to be entrusted to the care of a non-partisan little invisible cog in the State’s bureaucracy.

But presumably (given that it was my job) I would have been the author of “Draft Version 1.01 Beta” of the letter to the Department of Justice.

Preclearance submission letters can seem complicated, but they’re really not. Every preclearance submission letter could be thought of as a narrative that did two simple things.

First, the letter described some change in the way that elections would be conducted (and incidental to that description of some new procedure or system or law, the letter would explain that the change had been finally approved and was going to be implemented). Second, the letter would assert that the change in question, whatever that change might have been, would not have any negative discriminatory effect on any protected class of racial or language minority voters.

Sometimes (depending on the facts), it could be personally difficult for an attorney to find a philosophical justification for making that critical assertion. Nevertheless, and despite my own personal opinions about the 2011 redistricting, I would have written that the redistricting plan in all its complexity (and in all its ugly political expediency) would not have any negative discriminatory effect on any protected class of racial or language minority voters.

In so doing, I would have been doing what attorneys are supposed to do. In good faith, I would have been presenting not my personal assertion, but the assertion of the State’s representative government that the redistricting plan was not discriminatory.

And presumably the analysts at the Voting Section in the Department of Justice would read my assertion in the spirit in which it was given – as the most predictable and least interesting bit of legal boilerplate in the whole letter.

Because the real meat of any preclearance letter wasn’t the rote assertion that the thing being precleared wasn’t discriminatory. The most important part of the preclearance letter was the detailed description of the actual change.

When drafting preclearance letters, my approach was always one of complete transparency. So I think my alternate-universe self, in drafting this letter, would have gone systematically through the whole redistricting bill, district by district, describing in exacting detail the specific racial and language minority demographics (based on the 2010 Census and 2010 Congressional apportionment data) of each defined area, and in comparison with the older 2010 districts.

I would have called the legislative staff of the bill’s co-authors to get the names and contact information of minority community representatives who would support the State’s assertion, if any such minority sponsors or supporters of the redistricting bill had actually existed. If (as I suspect) there weren’t any minority contacts, I would simply have omitted that determination, and instead I would have provided the contact information for the bill’s (white, Republican) co-authors and sponsors.

I would have described how, when and where the State conducted public hearings on the proposed redistricting plans, and how the State invited minority community comments on those plans. Additionally, I would have described where the transcripts of those hearings, written comments and community meetings could be retrieved through the Texas Legislative Council.

In other words, I would have put all of the State’s cards on the table. Whether or not the State had a bad hand would have been irrelevant to the drafting of my Section 5 preclearance request – it wasn’t my place to say that the State’s redistricting plan was bad, but merely that the State (as sovereign) had presumptively not created a discriminatory redistricting plan.

 

As Redistricting Suit Continues, What is the State’s Endgame?

A surfeit of lawyers are at this moment proceeding with the second of three week-long hearings in the Federal District Court, Western District of Texas, San Antonio Division. The issue is whether the State of Texas intentionally discriminated against protected classes of minority voters in the course of redistricting U.S. Congressional districts in 2011.

The facts of the case as previously established are particularly unflattering to the Republican Party leadership in the Texas Legislature, and back in 2012 another Federal court already ruled that the Congressional redistricting was discriminatory, and carefully pointed out the evidence that this discrimination was intentional. Given all this, one might be inclined to ask, “what, exactly, is the State trying to accomplish in its defense of this lawsuit?”

As I’ve said before, I am a terrible prognosticator of political outcomes, in part because my dogged naivety gets in the way of my cynicism. With the litigation history of the 2011 redistricting largely running against the State, I would presume that at both the trial and appellate levels, the courts would be likely to find that continued close Federal monitoring of Texas election procedures is required under Section 3(b) of the Voting Rights Act.

My suspicion now (as it was in 2012 with respect to the “preclearance” suit that the State filed in lieu of an administrative review of the 2011 redistricting plans) is that the State’s attorneys have written off the trial court, and that Greg Abbott is taking a gamble that the conservative wing of the U.S. Supreme Court is so hostile generally towards the Voting Rights Act that the Court will help Texas out, no matter what the factual determinations might be. Eric Holder’s gamble, meanwhile, is that even the most conservative of the Justices must on some level be at least dimly aware of the irreparable damage that would be wrought to the Court’s tattered reputation and to the fabric of American political culture if the Court found some dry procedural way to rule that Texas had not acted in a discriminatory manner.

With a few scattered exceptions, we have had the good fortune in this country of enjoying roughly 40 years of relatively peaceful political engagement on race, class, and suffrage rights. With such a long period of quiet, it’s easy to forget that the Voting Rights Act and the Civil Rights Act were both born out of violence, and that to some extent we owe our internal social peace and security to these laws. One would presume that rational political actors (for the sake of their own selfish interests, if for no other reason) would be loath to weaken those laws.

Experts in redistricting litigation like Michael Li (http://txredistricting.org/post/58112466646/greg-abbotts-curious-brief and http://txredistricting.org/post/57592730495/the-state-of-texas-competing-vision-on-section-3), Rick Hasen (http://electionlawblog.org/?p=54118), and others have commented previously on the blithe and arrogant tone of the State’s legal defense, in both the current lawsuit and in the preclearance suit that the State filed in the D.C. court back in 2012. Is that tone (and the State’s apparent unconcern with the development of the factual record) born out of confidence that “the fix is in,” regardless of the facts?

Redistricting Trial Phase II: What Are All These Witnesses Going to Talk About?

This installment of my preview of the upcoming Perez v. Perry redistricting hearing focuses on the key Congressional districts at issue in the suit (i.e., the Congressional districts as they were drawn in 2011). Admittedly, most of you already know which districts those are, but for the sake of any redistricting newbies, let’s take a look at the heart of the controversy:

I. The Population Boom in Texas

In the 2000 Census, Texas had 20,851,820 people. In the 2010 Census, Texas boomed to 25,268,418, jumping ahead of New York to become the second-most populous state in the U.S., and gaining 4 additional seats in the U.S. House of Representatives. And of that growth, 89.2% was due to an increase in the minority population (aggregating all classes of minorities). The number of Hispanic or Latino residents increased from 6,669,666  to 9,460,921. The number of Black or African-American residents increased from 2,364,655 to 2,886,825. The number of Asian residents increased from 554,445 to 948,429. Meanwhile, the population identifying solely as white, non-Hispanic or Latino population increased from 10,933,313 to 11,397,345. (based on Census data for total population and ethnicity for Hispanic and non-Hispanic populations in Texas. For the 2000 data, see https://www.census.gov/census2000/pdf/tx_tab_1.PDF, and see http://txsdc.utsa.edu/Resources/Decennial/2010/Redistrict/pl94-171/profiles/county/table2.txt for the 2010 data.

II. The Decline in Minority-Opportunity Congressional Districts in Texas

One would assume, based on the numbers, that if nearly 90% of the population growth in Texas was attributable to increases in minority populations, that it would follow that the new Congressional districts would all be created as minority-opportunity districts (i.e., districts in which members of ethnic or racial minorities would outnumber whites). Instead, the Texas Legislature, guided by something other than common sense, made two of the four new seats safe for white Republican candidates (Congressional District 33 (CD33) and Congressional District 36 (CD36)).

Not that the Texas Congressional delegation was particularly good at representing Texas demographics before 2011, but the situation definitely got worse. While designating only 50% of the new districts as minority opportunity districts, the Texas Legislature got rid of three existing Hispanic minority opportunity districts (CD23, CD25, and CD27).

1. CD23

In 2003, Texas Republicans enacted a fairly brazen redistricting plan to wipe out remnants of the Democratic Party old guard in the Legislature. In so doing, they discriminated against Hispanic voters specifically, and were ultimately compelled to accept a court-ordered redrawing of two districts, one of which was CD23 (in West Texas). Nominally, the Hispanic voting age population was increased in this district, but voter turnout was comparatively anemic. Despite not performing well as a district that elected minority-favored candidates, the district was nonetheless understood to be a minority opportunity district.

In the 2011 plan, Hispanic voters who were more likely to vote were shifted out of the district and replaced with voting-age Hispanics who weren’t registered and didn’t vote, thereby preserving the appearance that the district was still safe for minority-favored candidates, while in fact shifting the district to the white Republican candidate.

2. CD25

CD25 has also had a checkered history – the Legislature has made repeated attempts to unseat the minority-favored candidate (in this case, the long-time Austin-based incumbent Lloyd Doggett) by dividing the tiny blue dot that is Austin into as many pieces as possible (putting the city in four, and then five different Congressional districts in an effort to “crack” Democratic Party majorities in the area). CD25 is now a rambling narrow gerrymandered mess that runs for hundreds of miles.

3. CD27

For decades, CD27 was a solidly blue Democratic safe seat, centered around the Hispanic-voter dominated cities of Corpus Christi and Brownsville. In the 2011 redistricting plan, the district was chopped up and moved north to become a Republican Party-dominated white majority district.

III. For Those of You Keeping Score

If Congressional districts were apportioned based solely on race, about 13 of the old 32 seats would have been apportioned to minority-favored candidates, and 14 seats would have to be apportioned out of the new 36 seats. As it happened, only 10 of the old seats were so apportioned (3 to African-American-favored candidates, and 7 to Hispanic and Latino-favored candidates).

That’s discriminatory, but not addressable as retrogressive (10 seats was better than what voters had been given previously). A redistricting plan isn’t retrogressive if it preserves an existing level of racial discrimination. If the state’s population hadn’t increased, Texas would not violate Section 2 of the Voting Rights Act by continuing to provide the same 10 total minority districts.

But as the number of seats increased from 32 to 36, Texas at least wasn’t legally entitled to make minority voters even worse off. They would have at least not been the author of worse discrimination than before by increasing the number of minority districts from 10 (which was three seats less than what it should have been) to 11 (which would have been three seats less than the new ideal of 14 seats out of 36).

So to recap – when Texas had 32 Congressional seats, 10 of the seats were apportioned as minority districts (3 African-American districts and 7 Hispanic or Latino districts). With 36 seats, either 10 (or 9 – there’s some disagreement among the parties about CD25 being a minority district or not) seats are now minority districts, meaning that depending on how one counts the districts, minority voters are either worse off (i.e., more discriminated against than before) by one Congressional district, or two.

IV. Remember the Real Issue

The State of Texas could admit that the 2011 redistricting plan was retrogressive, and still avoid any sanction. That’s because the 2011 plan was never actually used for an election, it was replaced with a court-drawn plan that was substantially adopted by the Texas Legislature in 2013, and that will be used for the 2014 election.

The real issue is whether the State of Texas engaged in intentional racial discrimination when it enacted the 2011 redistricting plan.

To keep track of the (surprisingly spotty and inconsistent) media coverage of the trial, and to make sense of the outcome, remember that the question isn’t so much that the 2011 redistricting plan was “bad,” but that the plaintiffs allege that the people drawing the maps made the plan intentionally bad in order to discriminate against minority voters.

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