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?