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Redistricting Panel Shoots Down Plaintiffs’ Request For Injunctive Relief

This isn’t breaking news — the redistricting panel’s order came out November 6, and the Texas Tribune and various editorialists have already weighed in on the implications. (See also this coverage from Texas Lawyer).

In particular, Jody Seaborn’s editorial in the Austin-American Statesman expresses everything I feel about the decision, only better. Jody also points out how the delays in the 2012 primary schedule ultimately produced Ted Cruz’s primary runoff victory over the more moderate David Dewhurst. (Disclosure: Jody and I are old friends.)

The federal judicial redistricting panel charged with reviewing the State’s 2011 redistricting plan (yes, that’s not a typo. 2011), has responded somewhat petulantly regarding an effort by a subgroup of the plaintiffs in the Perez v. Perry redistricting litigation who joined together in a motion to enjoin the State from using gerrymandered district boundary lines for the 2016 U.S. House of Representatives elections.

For a good overview and analysis of the origin, development and philosophy of this gerrymandering (cleverly described as a “Perrymander” by various wags), see this excellent article by Rosemarie Unite, The Perrymander, Polarization, and Peyote v. Section 2 of the Voting Rights Act, 46 Loy. L.A. L. Rev. 1075 (2013) (pdf). Also available in on the web at http://digitalcommons.lmu.edu/llr/vol46/iss3/7).

The subgroup of the plaintiffs that petitioned—including the League of United Latin American Citizens (LULAC ), the NAACP, the City of Austin, Travis County, Eddie Rodriguez Jr., Shannon Perez, the Quesada plaintiffs, et al., but excluding the Latino Redistricting Task Force, the United States Department of Justice, and the various congressional officeholder plaintiffs—had hoped to light a fire under the panel by asking for an injunction against the use of the redistricting plan that had been used in the November 2014 election (presumably hoping that the panel would either completely redraw the district maps, or at the very least prohibit the use of the bad maps).

Instead, the redistricting panel announced that the bad maps would most assuredly be used for the 2016 elections, stating that new maps at this late date would be unduly disruptive and confusing to voters and office seekers.

So sorry, petitioners.

See this statement from page five of the redistricting panel’s denial of a request for injunctive relief:

The Court has been working diligently and has made substantial progress toward resolution of the claims on the 2011 plans; however, it has not yet reached a final decision. Trial on the merits of the claims against the 2013 plans has not been scheduled, and legal challenges to the 2013 plans will not be resolved before the 2016 election cycle.

This unanimous denial could have been subtitled, “Redistricting Panels Have Feelings Too, You Know.”

The panel explicitly countered criticism that the judges have been dragging their feet on a resolution.

One can’t help but feel that there’s a little bit of passive-aggressive retribution in the decision. As in, “Oh! You think we haven’t been working fast enough to resolve your redistricting problems? Well how about this? How about we just declare that we won’t bother fixing any of this until the 2018 elections? Yeah! That’ll teach you to pressure us about coming up with some sort of consensus regarding your maps.”

This denial is frustrating on many levels. The State of Texas made no real effort to argue that its 2011 and 2013 maps weren’t discriminatory toward minority voters.The State’s argument, grounded and based solidly on a line of U.S. Supreme Court cases relating to so-called “partisan gerrymandering,” beginning with Davis v. Bandamer, 478 U.S. 109 (1986), Vieth v. Jubelirer, 541 U.S. 267 (2004), and League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006) is, more or less, we don’t discriminate against Hispanics and African Americans because of race, but because we,  the line-drawing Republican Party majority, want to crush the Democratic Party, and therefore any seemingly discriminatory line-drawing was not intentional.

You can see this argument reflected throughout the State’s proposed finding of fact and conclusions of law, as well as the State’s pre- and post-trial briefs. For example, on page 56 of the State’s proposed findings of fact and conclusions of law, finding of fact number 518 states that the chairman of the Texas House Redistricting Committee felt he could not pass a redistricting plan unless he guaranteed that three of the four new U.S. House of Representatives seats for Texas would go to Republicans. Later, on pages 100-101 of the same proposed finding of fact and conclusions of law (starting around proposed conclusion 45) the State argues for findings of fact that the Texas redistricting plan was motivated by political, rather than racial, discrimination, and was therefore not part of an invidious intentionally racially discriminatory scheme.

And the redistricting panel (which for those of you who are new to the story, consists of the three-judge panel convened in May of 2011 out of the membership of the San Antonio division of the Federal District Court for the Western District of Texas, as explained in this handy blog post from the wonderful (and greatly missed) Texas Redistricting and Election Law blog) has made as explicit as it possibly can that the most glaring of demographic problems with the State’s Congressional and State legislative district maps are not going to be fixed in time for the 2016 elections. That fact leaves just two federal election cycles (2018 and 2020) before the next redistricting maps get drawn.

Particularly for Hispanic voters in Texas, 2011–2021 is shaping up to be the lost decade for both U.S. House of Representatives representation, as well as for representation in the Texas Legislature, notwithstanding the fact that the population gains experienced by the State were overwhelmingly the result of increases in the population of protected classes of linguistic and racial minorities.

Lighting A Fire Under the Redistricting Panel – Plaintiffs Seek Injunctive Relief From San Antonio Federal Court

As Rick Hasen has reported, yesterday the plaintiffs in the 2011 redistricting lawsuit asked the three-judge panel for the Western District of Texas, San Antonio Division to enjoin the State of Texas from using the patently illegal district boundary lines that were used in the 2014 election.

Evidence-wise, the plaintiffs have a slam-dunk on this one – the State has lost at every turn with respect to the question as to whether the 2011 redistricting violated Section 2 of the Voting Rights Act; and there isn’t any serious disagreement on the facts – the State enacted a redistricting plan that was motivated by racial animus in order to limit the voting rights of racial minority groups.

For some reason that has never been explicitly articulated, the court appears to be paralyzed and unable to move on this issue. Possibly the members of the redistricting panel fear that any dramatic change in boundary lines will draw a disastrous results-oriented Supreme Court rebuke that might leave the plaintiffs in an even-worse position. but that doesn’t really justify the timidity with which the court has approached this matter. Whatever the motivation, the risk is now quite high that just as with the Texas elections in 2012 and 2014, the 2016 primaries and general election might be conducted using bad maps.

As I said before in reference to the November 2014 elections, the use of maps that have been explicitly found to violate Section 2 of the Voting Rights Act is not in keeping with judicial economy. That is true in part because bad maps are an early Christmas present to any losing candidate in any election in any of the affected urban areas in the State (particularly around the major population centers).

Heads up, election litigators – if your candidate has strong support among minority voters in 2016, but loses on these maps, you have been handed a ready-made, pre-briefed reason to contest the outcome of that unsuccessful election. And every contested election has at least one losing candidate, so somebody’s going to get creative if the court doesn’t get its act together.

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)

Reading the tea leaves – what do recent U.S. Supreme Court decisions bode for Texas elections?

Within the past week, the U.S. Supreme Court refused to grant certiori to hear an appeal of a decision upholding Wisconsin’s appalling voter i.d. law, (Frank v. Walker) and just remanded two Alabama redistricting cases (Alabama Black Legislative Caucus et al.  v. Alabama et al., linked with Alabama Democratic Conference et al., v. Alabama et al.) back to the lower courts on a 5-4 decision holding that the state legislature could not justify “packing” African-American voters into fewer districts on the basis that it was compelled to do so in order to comply with Section 5 of the Voting Rights Act.

Superficially, this seemed to be a bit of give-and-take when it came to voting rights, although the cases weren’t directly comparable on the facts or issues.

So, what do these decisions mean for (1) the Texas voter i.d. case (Veasey et al. v. Perry et al.), or (2) the Texas redistricting case (Perez et al. v. Texas)?

Answer: Not much either way. The Texas Legislature (bless its aggregated shriveled dignity) overreached far more aggressively on both voter i.d. laws and on redistricting than did any of the other states (with the possible exception of South Carolina, which seems to be giving us a run for the money on efforts to cement the title of “most regressed” when it comes to voting rights).

As a consequence, the Texas lawsuits present voting rights advocates with an interesting set of tactical choices. On the one hand, the State has been such a bad actor that it is absolutely imperative that its voter i.d. and 2013 redistricting be struck down in the Supreme Court as unconstitutional, and that its future actions be subjected to “opt-in” preclearance under Section 3 of the Voting Rights Act.

On the other hand, because Texas pushed the envelope on bad legislative acts, the State provided some cover for other states involved in similar lawsuits. It’s sometimes handy to be able to point to another entity and say, “Well, at least our state government didn’t try something on the order of what Texas did!”

In the case of the Wisconsin litigation, the plaintiffs lacked sufficient evidence of malicious racial intent to invoke key provisions of the Voting Rights Act. In the case of the Alabama litigation, the plaintiffs prevailed only in knocking back a couple of fairly tenuous legal arguments justifying racial gerrymandering.

In the Texas litigation, the stakes are much higher, and the evidence for racial animus is much stronger. As for me, I just hope that the Supreme Court fixes the Texas mistakes. As much as I might hope that Justice Roberts would have a change of heart regarding the importance of the Voting Rights Act for the country as a whole, I really just want some acknowledgment that there are fact patterns so egregious that they can embarrass even a few hard-core states-rightists.

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Phase III of Perez v. Perry – The Dispute Over Texas House District 90

It’s been an eventful week, but before I get distracted by the next news cycle, I wanted to remind you that the redistricting lawsuit currently going on in San Antonio isn’t over yet.

As often happens with redistricting lawsuits (because redistricting lawsuits tend to involve lots of plaintiffs, including voters, candidates, incumbent elected officials, etc., and lots of issues associated with specific geographic boundary definitions), the procedural details of Perez et al. v. Perry et al. are a little complicated.

Stripping out all the complex details, here’s the recap: The parties agreed for the sake of not going crazy that the issues in this lawsuit would be broken down into three categories, and that each category of issues would get a courtroom hearing.

The three big categories of issues are (1) Whether the State of Texas intentionally discriminated against minority voters in adopting a 2011 redistricting plan for the Texas House of Representatives; (2) Whether the State of Texas intentionally discriminated against minority voters in adopting a 2011 redistricting plan that apportioned new and existing U.S. House of Representatives seats; and (3) Whether the 2013 redistricting plans violate the Voting Rights Act.

The first issue (the 2011 Texas House redistricting plan) was the subject of a six-day hearing that began on July 14th of this year. The second issue (the 2011 U.S. Congressional House district reapportionment) was the subject of a week-long hearing that began on August 11th. The third issue will be considered at an as-yet unscheduled hearing, followed by a possible fourth and final hearing to resolve the State’s liability, if any is found. (I’ve posted it before, but for newcomers, I recommend Michael Li’s overview of the suit, via the Brennan Center for Justice at NYU: http://www.brennancenter.org/blog/texas-redistricting-battle-begins

One of the flashpoint issues for the third phase of the trial will be how Republicans in the Texas Legislature shut minority representatives out of the 2013 redistricting bill deliberations, especially with respect to the 2013 Texas House plan. This plan deviates from the interim plan ordered by the San Antonio federal court panel in 2012. One major deviation in boundaries affects Texas House District 90 (in Tarrant County, or more specifically, in part of the City of Fort Worth). Although nominally a minority-opportunity district for candidates favored by Latino or Hispanic voters, HD90 was allegedly “packed and cracked” in a manner similar to some of the objectionable 2011 districts. Minority voters were moved out of the district, and replaced with non-voting minorities, in order to further reduce the number of districts capable of electing minority-favored candidates.

For more detail on this specific issue, see the fourth supplemental trial brief filed by the Texas Latino Redistricting Task Force (available as a .pdf through the Moritz College of Law portal, at http://moritzlaw.osu.edu/electionlaw/litigation/documents/PerezTLRTF4thCompl.pdf

Also, for those of you who want much more detail, check out the written closing arguments from Phase II of the trial, filed by the parties on August 21, and available here: http://moritzlaw.osu.edu/electionlaw/litigation/PerezVTexas.php (scroll down the document list until you get to the August 21st items. There are Phase II trial briefs from MALDEF, the Justice Department, the State of Texas, and several of the individual plaintiffs. If you’re pressed for time, just check out the Justice Department’s brief, and the State of Texas rebuttal arguments).

 

 

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.

 

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.