Speaking of Redistricting, When Can We Expect To See A Court Order?

Well, for all things election-litigation related, I like to turn to that excellent source, namely Election Law@Moritz (i.e., the magisterial website maintained by the Moritz College of Law at Ohio State University, which tracks election-related litigation, legislation, and so on). And so, let’s look at what’s happening in Perez v. Texas:

Huh … that’s funny. So … aside from some rather minor procedural wrangling in early June of this year, all the significant briefing deadlines have passed. The last substantive order from the court was a scheduling order back in mid March, asking the parties to submit briefs on a 5th Circuit ruling related to the “mootness” of the fight over the 2011 Texas House of Representatives and Congressional districts. Those briefs are all squarely tucked away and filed, and have been for some time.

In May (with a note of urgency) the Texas Latino Redistricting Task Force very politely asked the redistricting panel to issue a ruling finding discriminatory redistricting, damn it.

Let’s see …

May, June, July, August, September. So … five months and counting.

Maybe the panel figures they could just wait for the 2020 census and avoid a lot of needless paperwork.

Or, another way to look at the speedy resolution of this matter is to consider that it’s been … five years since the suit was filed. Which, hey, as an attorney, I know is the merest blink of an eye in the grand slow procession of the law, an edifice resting on the second-hand posthumous recollections of extemporaneous judgments regarding disputes over cattle and land made by long-dead illiterate Saxon barons in the dim recesses of Danelaw and Alfred the Great.

So, you know, it’s not a structure built for speed.

But still, … all the substantive briefing was completed a long time ago. What’s the hold-up?

Everyone Pretty Much Agrees – The 2016 Texas Primary Schedule Is Going To Be A Mess

Ah, Texas, sweet Texas. Badly-redistricted, voter-hostile Texas. Because the 2011 redistricting lawsuits still aren’t resolved, there is a general sense among election officials that one of two things will happen in the next two months:

  1. Either the Western District of Texas, San Antonio Division redistricting panel will be compelled to issue a new and more equitable redistricting plan for the State sometime prior to the candidate filing period, or
  2. Having failed to hold time in a bottle, the court will reluctantly apply the map used in the 2014 elections once again for 2016, notwithstanding the increasingly problematic and widening gap between that map and the actual state demographics.

The Republicans have a rather handy ace up their sleeve to shoot down the remedial application of any corrective court-ordered redistricting plan, and that ace is their faith in the misapplication of a little U.S. Supreme Court case called Purcell v. Gonzalez, 549 U.S. 1 (2006). The position of both the 5th Circuit and the conservative majority on the U.S. Supreme Court appears to be that because Purcell called for caution in the application of last-minute court orders that might affect election schedules, it therefore follows that court orders protecting voting rights must not be enforced if an election is right around the corner. And an election is always, always just around the corner.

Of course, that’s just stupid, as Justice Ginsberg more than adequately explained in her dissent in Veasey v. Perry on the eve of the November 2014 election. When actual harm is being done to voters through actual violations of the law, the violator should not be able to say, “Oh well. Sorry about breaking the law, but it’s so close to the election. We just don’t have time not to break the law.”

If the judicial redistricting panel is going to fix Texas districts, it needs to do so by no later than November of this year – owing to increasingly early candidate filing deadlines to accommodate the Texas primary elections, district boundaries need to be known by no later than … well … now, if you want to be precise about it. The first day to file for party precinct chair elections is Tuesday, September 15th. Yes, as in September 15th, 2015. As in two weeks. The first day for candidates to file is one month later, on November 14th. The deadline to file is December 14th. Yes, as in this year.

The Texas Tribune has a nice background piece on the looming problem. (Election Managers Partying Like It’s 2012). If I were king, I wouldn’t care whether the parties got to have primaries or not – primaries are private elections conducted by social clubs (i.e., political parties). Primaries are beauty pageants for candidate nominations, and there are all sorts of alternatives in place for picking party candidates – caucuses, nominating committees, etc. Could a court order disrupt the primaries? Well, such are the wages of sin; nobody asked the Legislature to do an illegal job of redistricting back in 2011.

On a related note, Rick Hasen nicely excoriates our fair state in this recent analysis for Slate Magazine. (Texas Two-Steps All Over Voting Rights).

Award of Attorneys Fees to Plaintiff in Texas Redistricting Case

There’s not a lot to say about this, except of course for those four magic words, “I told you so.”

Texas v. U.S. – Appellate Court Order Upholding Award of $1 Million to Plaintiffs in Redistricting Case (.pdf courtesy of SCOTUSblog.com)

On the 50th Anniversary of the Voting Rights Act – A New Study from Rice University Corroborates the Damage Caused By the Photo I.D. Law

Not that anyone should be surprised, but there’s this:

One nice thing about this study is the timing, given the work that now needs to be done to judicially reform Texas voting laws. With this study, the plaintiffs in Veasey v. Perry should be able to help the Federal district court judge get over the hurdle placed by the 5th Circuit Court of Appeals. This evidence helps reinforce the trial court’s previous ruling holding that the State intentionally discriminated against minority voters.

So – Am I Being Too Hard On The Republicans?

A few posts ago, in a fit of pique, and in the context of Donald Trump’s relative success as an early front-runner among the potential Republican Party candidates running for that party’s 2016 presidential race nomination, I referred to the Republican Party as the “Party of Apartheid.” My wife believes that this rhetorical flourish stepped over a line (the invisible line of “I am trying to get a job and not look like a crazy person by insulting people needlessly.”) (P.S. I am seeking employment.)

The thing is, when I wrote that line, I didn’t actually think I was being particularly provocative or insulting. In the past, I’ve referred to the Republican Party as having a distinct intra-party segment or wing that could fairly be described as neo-segregationist, and for my own enlightenment, I’ve traced the history of the Republican Party’s post-1964 Faustian bargain known as the “Southern Strategy,” in which the party absorbed the explicitly pro-segregationist Southern Dixiecrats who felt abandoned by the Democratic Party. (For an introductory overview of the evolution of the “Southern Strategy,” this Wikipedia article is a good start. Also good is this recent short article by Professor Elwood Watson on GOP engagement with racial politics.)

The Southern Strategy was wildly and overwhelmingly successful, by the way. By welcoming the tattered remains of conservative Southern Democrats into their folds, the Republican Party decisively conquered local, state, and Federal offices throughout the South, particularly with the ascendancy of Ronald Reagan.

Why did the strategy work so well? Think about it. It’s not as though the Federal judicial and legislative triumph of the Civil Rights Act waved a magic wand and made all the segregationists disappear, just because the formal mechanisms and legal framework of segregation itself had been abolished. The segregationists had to go somewhere.

Nevertheless, in a nod to those who may have felt individually singled out or insulted by my analysis of the Republican Party as an institution, I should acknowledge that the act of labeling a person, group, association, or political party as racist is rhetorically inflammatory, even when that person, group, association, or political party is objectively racist. The fact that racist individuals do not (generally) relish self-identification as racists should be seen as a positive recent development in American political discourse.

As politicians of all parties and ideological positions learned over the iterative process of attempting to win elections in the United States, starting with post-Reconstruction and moving forward through the Civil Rights era, one had to be sensitive to the ways in which threatened conservative white voters preserved their sense of self-worth as human beings in the face of cognitive dissonance on being told that they were horrible people for being bigots.

I suspect that for individual bigots (i.e., ultimately all of us, since we all have our own internal unsupportable prejudices), bigotry involves a constant gauging of social acceptability and peer status in terms of feelings about a prejudice, with an internal, unspoken tug of war between a personal racist assertion born of culture, background, and experience (say, something like an unspoken feeling that, “I hate minorities,” or “I hate poor people,” or “I hate people who are different from me.”) and a questioning of that personal racist assertion, (something like, “Do I really hate minorities? What about Colin Powell? He’s identified as a minority based on racial classifications, but he’s also a former member of a Republican Presidential administration. Do I hate Colin Powell? If I do hate him, is it because he is identified as belonging to a racial minority, or do I hate him for reasons unrelated to his identification as a racial minority? Do I hate Condoleeza Rice? She’s also a former member of a Republican Presidential administration. If I discover on self-examination that I do hate Condoleeza Rice, does my realization affect how I see myself interacting with a community of my family, friends, coworkers, and peers?”)

So a person might go from thinking, “I hate minorities.” to thinking, “I thought I hated all minorities. But other people who share my views appear not to hate Condoleeza Rice, either because (a) they don’t regard her as being a hated minority, or (b) because they don’t hate minorities. Now either I don’t know if I hate Condoleeza Rice, or my global hatred of minorities must be modified and altered because Condoleeza Rice lacks some element of unacceptability in the eyes of my peers. Perhaps I don’t hate Condoleeza Rice despite the fact that she is identified with a minority group, either because she transcends that group, or because I don’t really hate minorities.”

Among some groups (say, for example, the most extreme white supremacists), the peer consensus would support continuing to hate Colin Powell, Condoleeza Rice, Clarence Thomas, or other nationally famous black political conservatives, solely on the basis of race – these groups and the individual bigots within these groups would then be compelled to distance themselves even further from their more moderate ideological peers, at a cost in terms of their self-identity and self-perceived social value and acceptance. When pressed on their rationalizations for their inability to not hate individual black conservatives, they would have to fall back on some distinguishing factor or quality specific to cultural determinations of say, Condoleeza Rice’s identification as a member of a minority group that she can never overcome; one could imagine a White Power gang member or a Klu Klux Klan member saying, “Oh, we can’t make an exception in our general worldview on behalf of Condoleeza Rice because of [some rationalization supporting the universality of our hatred for blacks].”

Among other groups (say, for example, conservative whites who have internalized a capacity to interact on civil terms with members of racial minority groups), the internal dialogue on race comes to a different conclusion than it does for more “doctrinaire” racists. A rural Southern bigot who has personal experiences of professional and social dealings with members of a nominally hated group might think. “Wait. I’m not a racist after all, because I don’t hate Condoleeza Rice. In order to actually be a racist, it would be necessary for me to hate Condoleeza Rice. Q.E.D., I’m open-minded. Thank goodness I’m not a racist, because self-identification as a racist comes with a number of unacceptable social trade-offs and costs that I’m not willing to be burdened with.”

Such a person, having experienced relief at not having to self-identify as racist, would read my labeling of the Republican Party as the “Party of Apartheid” (or more accurately, my use of that label to suggest that Donald Trump’s success in the early running among possible Republican Party candidates for the 2016 Presidential nomination demonstrates segregationist vigor within the Republican Party) as deeply offensive. “How dare that horrid little election law attorney paint me with the broad brush of brutal South African racial apartheid, just because I happened to vote for Mitt Romney in 2012! I’m no racist! I don’t even like Donald Trump!”

Here’s where its important for readers not to conflate their own personal self-identification with the ideological positions and strategies of the groups that they are members of. The fact that I can regard the Republican Party as effectively repositioning itself as the Party of Apartheid does not mean that I think individuals who label themselves as Republicans are consequently automatically in favor of neo-segregationist policies, or that I think that all (or even very many) Republicans are white supremacists, or that they even agree with or approve of their party’s general position on any matters associated with race.

If that isn’t clear, let me repeat it. As a shorthand expression of someone’s moral qualities, policy views, or personal ethics, I find party affiliation to be a completely meaningless and useless label in the abstract. There are Republicans in South Texas who would be vilified as bomb-throwing members of the Communist Politburo by hard right-wingers. There are Democrats in the Texas Panhandle who would be satirized as fire-breathing ultra-right Fascists by hard left-wingers. If someone shakes my hand and tells me, “I’m John Doe, Republican,” I don’t think, “Oh, John Doe, you must be a racist.” In fact, I don’t make any judgment at all until John Doe actually tells me what he thinks and shows me how he acts.

It’s not even the case that any Republicans necessarily wanted or welcomed segregationists into the Republican Party after 1964. In 1968, George Wallace ran for President on the Firebreathing Racist ticket because the Party of Lincoln didn’t want him, and the Democrats had evolved away from him. But as I said, the segregationists had to go somewhere, and ours is a nation institutionally constructed to preserve a two-party political system.

When a group gets the boot from one party, they only have one option – joining the other party. They have to swallow their pride, alter their rhetoric, philosophically make their peace with the realignment, and move on with their lives. That’s what the segregationists did after LBJ (in the most dramatic political masterstroke since the Emancipation Proclamation) broke the power of the Southern Congressional delegation.

What’s interesting about the inevitability of Donald Trump’s current success is that reflects a new sophistication in the segregationist platform; one that (wisely) steers away from the tired, moribund, and politically impotent anti-black racism of the Old South, and instead energizes a more cosmopolitan national nativist racism that plugs into a nuanced hatred of an amorphous and threatening “other.”

The Fifth Circuit Decision in Veasey v. Perry Bends Over Backwards to Help the State

As other commenters have pointed out, today’s decision upholding the determination that Texas violated the Voting Rights Act is a painfully contorted partial affirmance and remand to the trial court for a remedy. (The link is to the copy of the opinion provided on Rick Hasen’s blog).

The appellate court in effect has said, “Well, Texas doesn’t always charge for birth certificates now (thanks to a mildly remedial law passed in the 2015 legislative session), so we think the picture ID requirement isn’t a poll tax. And … we think the trial court relied too much on an historical record of racial discrimination in Texas. That’s just mean. So … we’re remanding the decision to see if the trial court can find any more evidence of current racial discrimination. We grudgingly admit that the Texas picture ID law is illegal, but we’ll leave it to the trial court to figure out a way to carefully invalidate only those portions of the law that are bad. Which might not be the whole law.”

It’s really a terrible decision in a lot of ways; a sort-of wishy-washy agonized small-voiced acknowledgment that Texas broke the law, mixed in with page after page of carefully-worded dismissal of the mountains of factual evidence of intentional racial discrimination that prompted the law’s development in the first place.

Gosh. All that historical stuff just leaves the Court woozy and afraid that maybe the trial court was too hard on poor old Texas.

Partial Vindication – Texas Voter I.D. Law Held to Violate Voting Rights Act

Here’s Rick Hasen’s analysis on this breaking story. I find it troubling that the 5th Circuit remanded on the question as to whether the Texas picture I.D. law had a racially discriminatory purpose. Still, it’s at least a nail in the coffin of one of the worst voter suppression laws in the country.

Notice anything strange about these websites?



That’s right – there’s not the slightest mention of the 5th Circuit’s decision. That’s quite a contrast from back when Shelby County v. Holder came out; (within two hours of that decision two years ago, there were notices plastered all over the Secretary of State’s website announcing that the State was doubling down on its special brand of violating voter’s rights and instantly applying the discredited voter ID law).

If a voter relied on the Texas Secretary of State’s website for information, they would think that it was all business as usual; http://www.votetexas.gov informs voters that a “picture I.D. is now required to vote.”

But you say, “Well, Joe, that’s kind of unfair. I mean … there’s all that HTML coding to do, and it’s after business hours, and …”

The decision came out at lunchtime. That’s six hours ago.

After all, the Texas Attorney General had time to put something up on that agency’s website.


What the … ? “Texas Voter ID Law to Remain In Effect”

Oh my god.

That’s embarrassing.

That’s really embarrassing.

I guess the A.G. takes the position that because the 5th Circuit remanded on the issue of intentional discrimination, the fact that the court upheld the trial court determination that the law is freakin’ illegal and unenforceable is somehow sprinkled with magic appellate fairy dust.

Then again, the following disclaimer should be prominently displayed and attached to all press statements made by the Texas Attorney General.

“Please note that the opinions of the Attorney General are those of an individual currently under indictment for three felonies involving acts of intentional fraud. Therefore, proceed with caution.”


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