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Monthly Archives: August 2014

Update on Irving ISD Voting Rights Suit

I’ve previously written about a lawsuit brought on behalf of Hispanic voters in Irving Texas (https://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.

Vox on Gerrymandering

Vox has posted an entertaining video about how Canada reformed its process for drawing district boundaries, along with links and a general overview of gerrymandering and the redistricting process. The suggestion is that the job of redistricting needs to be taken away from politicians and given to nonpartisan redistricting commissions.

The post (with a colorfully fanciful map of the U.S. chopped into more compact congressional districts) is available here: http://www.vox.com/2014/5/8/5695350/this-is-what-america-would-look-like-without-gerrymandering

In Texas, repeated efforts to reform the redistricting process have gone almost nowhere, although each new session opens with someone filing a bill to create a nonpartisan redistricting committee. If such a thing ever does pass, one hopes that any such nonpartisan redistricting committee will be constituted in such a way as to avoid hopeless tie votes and partisan gridlock among the members of such a committee.