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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.

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.

v

The Great Chain of Being Cranky About Disenfranchisement; or The Stupids, Continued

After the November election, a number of editorial articles came out with variations on the following theme – that the various depressing voter I.D. laws didn’t actually have much effect on elections. Because hey, the Republicans knocked the elections out of the park, right? That happened despite disproportionately good turnout among minority voters in some elections.

Such editorials are music to the ears of the extreme right (“Yeah. See, we’re not racists. If we were racists, we would have had to turn the firehoses on the swarms of minority voters that voted in the November 2014 federal elections. But we didn’t have to use firehoses or police dogs, or even fire any tear gas into the polling places. Therefore, we have conclusively demonstrated that we’re not racists. Plus, we love democracy. Democracy was very good to us.”) and to the defense attorneys representing the State of Texas in its appeal of Veasey v. Perry et al.

I mean, if an editorial by Nate Cohn in the New York Times, (that notorious hotbed of centrist legal opinions), comes out saying that voter I.D. weren’t no big deal, then the centerpiece of the plaintiffs’ evidence against the State in Veasey is undermined, and the State should walk on all charges, right?

Mr. Cohn was extending a dialog he had begun with the Brennan Center on this question with an earlier and similarly dumb editorial along the same themes.

Mr. Cohn’s argument runs like this: It must be the case that 600,000 Texas voters weren’t disenfranchised because if they had been disenfranchised, they would have been turned away from the polls. Since 600,000 people weren’t turned away from the polls, 600,000 people weren’t disenfranchised. Quod erat demonstram. Ipso facto. Res ipse loquitor. Et cetera.

And because only a fraction of all registered voters lack sufficient I.D., (say, 9 percent, or 11 percent, or something like that) it means that voter I.D. laws don’t actually change election outcomes. Right? Right? Because if the bad guy won by 20 percent, then even if all the voters without i.d. had been able to vote (and even if all of them had voted for the bad guy’s opponent), the bad guy would still have won by 11 percent, or 9 percent. Or whatever.

I’ve written about this before, but maybe if I write slower and louder, people will begin to understand.

The secret to getting people not to vote is to discourage them from attempting to vote. And because the cost of voting is so high compared to the benefit, it is very, very easy to discourage people from voting.

And when people don’t vote, they don’t make an ostentatious show of not voting. They don’t gather en masse, carrying placards and linked arm-in-arm at the polling place to not cast their ballot, in a vast silent repudiation of their civic authority. Such mass demonstrations by non-voters would be quite satisfying, if they happened, and would make for some fun political theater. But they don’t happen, because showing up at a polling place to not vote is almost as much bother as showing up at a polling place to vote.

Non-voters don’t go out of their way to proclaim their nonvoting status. They go to work or school. They run errands. They watch T.V. Some of them register to vote, but fail to register on Mr. Cohn’s radar, and so he assumes that they don’t exist. Some of them fail to register to vote, period, and so they don’t even show up in the statistics of “registered voters who lack i.d.”

The authors of the sociological studies at the heart of the plaintiffs’ case in Veasey v. Perry didn’t merely rely on the self-selecting sample of voters who actually go to vote. They called people up and asked them direct questions about their status as voters, and about their inclination to vote or not vote, based on their circumstances.

As it turns out, (as amply demonstrated by our most recent election) disenfranchisement works. It would have been embarrassing to the arch-conservative proponents and apologists for picture i.d. requirements  if disenfranchisement hadn’t worked, because it’s actually kind of an administrative pain in the ass to exclude those naughty liberals from the polls, and it costs money to administer draconian voter i.d. laws. Luckily for the right, everything went swimmingly.

Let’s look at the November 2014 elections in one Texas county, and see how disenfranchisement succeeded in that county.

Harris County, Texas

Voters in Harris County had a long ballot to work on this year, in part because this very heavily populated county has an enormous county and district judiciary to handle the legal caseload generated by its roughly 4,330,000 residents. As it seems to happen every four years, the district and county courts were filled by Republican candidates, who pretty uniformly won their seats by consistent margins, just as they had even when Bill White carried Harris County in 2010.

2010 was a watershed year for the county – it was the first Federal decennial census in which Harris County had more than 4 million people. The City of Houston, meanwhile, was estimated to have just a smidge under 3 million people; there’s no doubt that Houston, like much of urban Texas, is experiencing a tremendous population boom. In fact, the county has added roughly 240,000 people or more since the 2010 Census; my guess (and the guess of the U.S. Census demographers) is that the recent population increase skews in favor of Hispanic or Latino residents.

As of the 2010 Census, slightly more than 40% of the Harris County population identified as Hispanic or Latino, while about 33% identified as non-Hispanic white, and about 18.4% identified as non-Hispanic black. As of 2013, those percentages were estimated to work out as 41% Hispanic, 19% Black, and 32% non-Hispanic white.

A lot of people under 18 live in Harris County, so let’s say that only about 72 percent of the total population are voting age. That’s about 3,117,600 voting age people in Harris County as of 2013.

So … how successful have people been at registering Harris County residents to vote? Well, out of those 3.12 million voting-age people in Harris County, only 2.06 million were registered to vote in the November 2014 election. So let’s see, um, that’s a 66% registration rate.

Hmm. Let’s see. In 2002 (a relatively slow gubernatorial election year, with anemic turnout), there were 1.9 million registered voters in Harris County.

But … Wait. What? That’s almost as many registered voters as there are now in that county.

What was the voting-age population of Harris County in 2002? Well, the estimated 2002 population in the county was 3.54 million. Of those, we’ll guess that around 71% were 18 or older (based on the 2000 census data). So that’s an estimated voting age population of 2.51 million in 2002, of whom 1.9 million were registered. That’s a 75.6% registration rate.

I’ll admit that a 75.6% voter registration rate wasn’t spectacular in 2002. But it was definitely better than a 66% registration rate in 2014. If the Harris County Voter Registrar had managed to just tread water with regard to registration between 2002 and 2014, we’d expect that there would be about 2.36 million registered voters in Harris County as of the November 2014 election.

Which works out rather nicely as a shortfall of 300,000 people in the Harris County voting-age population who should have been registered voters (based on historic trends), but who weren’t registered.

Now … from 2002 to 2014, the racial demographics in Harris County basically flipped for white and Hispanic voters. In 2002, about 42% of the voters were non-Hispanic whites, and about 32% of the voters were Hispanic.

What the Texas Republicans realized in 2011 is that they would have to find a way to discourage both voter registration and voting in Harris County, so that while the percentage of non-Hispanic registered voters would remain roughly steady (rising a very modest 8% over the course of 12 years), the percentage of Hispanic registered voters would need to go down. And it would need to go down by a big margin.

The available tools were varied, and ranged from bad-faith purges and registration challenges to outright bullying and strong-arm tactics. But none of those tools would be as effective (in terms of the percentage of potential votes suppressed) as a simple increase in the opportunity costs of voter registration and voting.

This is an area deserving of additional study, but I would hazard that by focusing solely on the suppressive effect of voter i.d. laws as applied to registered voters, studies by the Brennan Center and others have dramatically underestimated the intended and successfully achieved levels of vote suppression generally. The underestimate is the result of failing to consider the suppressive effect of harsh election laws not just on the people who are already registered to vote, but also on the people who haven’t registered yet.

If the suite of laws enacted in 2011 (not just picture i.d., but also restrictions on volunteer deputy registrars, the mealy scrutiny and comparison of error-ridden databases, etc.) managed to drop voter registration in Harris County by around 13%, and the picture i.d. requirement managed to mess up voter eligibility for around 9% to 11% of the remaining 2.06 million voters, wouldn’t it be more accurate to say that (in Harris County, at least) that voter suppression succeeded in three ways, by:

(1) trimming the rolls of around 300,000 (mostly minority, poor, or elderly people) who would otherwise have registered to vote;

(2) discouraging another 180,000 to 220,000 registered voters from bothering to vote (the latter group also being disproportionately composed of minorities and the poor), and;

(3) so debasing and screwing up the election experience for everyone else that turnout was at an all-time low (around 678,000 votes cast in the big races, or around 33% of the registered voters).

It starts to look like the Republicans were running up the score in an unseemly way. I mean, if you start with 3.12 million possible voters (more or less), disenfranchise one sixth of those voters (say, around half a million), and then demoralize two thirds of the rest so badly that they don’t bother to come out and vote, well then … voila!

You get an instant Republican grand slam. A mandate for the ages, and an endorsement by our polity of the emerging πρωκτοκρατία (proctocratia, i.e., a form of government known as a proctocracy, administered by proctocrats).

Hey! You there! Candidates in Harris County who lost!

If you lost, and you lost by a margin of around 24% of the vote or less, strongly consider filing an election contest. Remember – such an action must be initiated not later than 30 days after the canvass of your election, by filing suit in district court. Your clock is ticking. Also remember (if you’re feeling a little sheepish about filing such a lawsuit) – that the November 2014 general election was an illegal election.

As for Mr.Cohn of the New York Times, here are some general tips for successfully navigating the confusing world we live in.

Sometimes bad actions are identified by absence, rather than presence. For example, if you are in a coal mine, and most of the canaries have suddenly gone silent, that isn’t proof that the remaining canaries are happy and content. That’s evidence that something is wrong.

“Well, everyone said that when the crew hit that natural gas pocket, it created a poisonous atmosphere. But I heard that at least 32% of the canaries were still singing. Therefore, the natural gas pocket could not have had any measurable effect on the health of the canaries. Q.E.D. Res ipse loquitor. Et cetera, et cetera. Say, does anyone else feel a little light-headed?”

What Does Holder’s Resignation Portend for Voting Rights Advocates?

As you know, it’s been widely reported in the national press that after six years as President Obama’s Attorney General, Eric Holder is stepping down. There are all sorts of messages that one can read in the tea leaves here – to the extent that Holder has been an effective A.G., he’s also been a favorite target of criticism from the far right, and it’s possible that as the midterm elections loom, President Obama is trying to neutralize some of that criticism.

The Department of Justice is a huge agency, and I’m sure that anyone working there would agree that it’s not a perfect place – certainly the criminal investigation and criminal prosecution arms of the Department have had their ups and downs over the past half-decade.

Similarly, I’m sure that the rank-and-file employees of the Voting Rights Section could, in moments of candor, express dissatisfaction with one or another aspect of the Department’s management. But no matter what opinion one may have of Attorney General Holder, and regardless of one’s political affiliations, one must agree that the Department of Justice has responded aggressively and consistently with respect to voting rights litigation after Shelby County v. Holder.

I think that on balance, Attorney General Holder’s resignation presages both a bruising confirmation fight for his successor (as predicted by every major media source), and a hit to the Voting Section’s employees’ morale.

Currently, the trial attorneys working for the Department in high-profile cases like the Texas 2011 redistricting case, the Texas voter I.D. case, the Ohio voter registration case, the Wisconsin voter I.D. case, the North Carolina voter I.D. case, and many other less visible voting rights cases, are doing absolutely stellar courtroom work, in both their filed motions and pleadings, and in the oral advocacy that they are doing.

Even if they aren’t interested in the issues being contested in these suits, law school students would do well to study and emulate the lucidity and organization of the Department of Justice-authored briefs that have been filed in these cases. This is top-notch, major league lawyering by many of the nation’s best civil rights litigators.

Such excellent work is possible in part because of the political and institutional support supplied to the Voting Section by Attorney General Holder. My fear is that the Republicans will now shift their resources away from attempting to defend their frankly indefensible restrictions on voting, and instead will use the Senate confirmation hearings to cripple voting rights advocacy.

For instance, here are a couple of illuminating pull quotes from the USA Today story about the A.G.’s resignation:

Majority Leader Mitch McConnell, R-Ky., a Holder critic, said Republicans would scrutinize the next nominee to make sure he or she “finally returns to prioritizing law enforcement over partisan concerns.”

Sen. Chuck Grassley of Iowa, the ranking Republican on the Judiciary Committee, urged Obama to take his time. “Rather than rush a nominee through the Senate in a lame-duck session, I hope the president will now take his time to nominate a qualified individual who can start fresh relationships with Congress,” he said.

“Prioritizing law enforcement over partisan concerns” should be read between the lines to mean “abandoning voting rights litigation,” because for decades, Republicans have characterized enforcement of the Voting Rights Act as a purely liberal Democratic Party concern.

And “I hope the president will now take his time to nominate a qualified individual” should be read as meaning, “After the November election, and with an (expected) Republican-led House and Senate, President Obama can kiss goodbye any hope of ever getting Senate confirmation of any nominee he chooses from now until the end of his term.”

My hope is that as Attorney General Holder leaves office, his status as a lame-duck head of the Department of Justice will free him to some extent to end his tenure with bold, fearless policy actions. Like maybe … I don’t know … boldly pushing for the enactment of a proposed Civil Rights Act-based set of administrative rules designed to curb the worst excesses of post-Shelby County restrictions on voting. That’s what I’d suggest.

For those of you using web readers, here are the cited links:

http://www.scotusblog.com/case-files/cases/shelby-county-v-holder/

http://www.usatoday.com/story/news/politics/2014/09/25/eric-holder-attorney-general-resigns/16203079/

https://texaselectionlaw.wordpress.com/2014/05/07/formal-petition-for-rulemaking-final-draft-with-doj/

 

So many lawsuits …

Rick Hasen has provided a link to the latest Law and Order-themed electionline Weekly (http://www.electionline.org/index.php/electionline-weekly), and as the editor is careful to note, the list of election-related lawsuits on the first page isn’t supposed to be inclusive or exhaustive.

Nevertheless, I feel a little bit hurt that the editors at Electionline couldn’t have included at least one Texas lawsuit. Maybe the newsletter writer was simply overwhelmed by the available choices. Remember – Veasey v. Perry opens next week in Corpus Christi, while Perez v. Perry is expected to continue with hearings this fall. And then there are all the local suits, which tend to be harder to track down.

One suit (and associated grand jury investigation) in Hidalgo County arising out of the Democratic Party primary election has finally been put to bed – an expert data security company put rumors of tampering with voting equipment to rest, and the county followed suit by shutting down the related criminal investigation. The story is here: http://www.texaslawyer.com/id=1202667669976/Election-Lawsuits-End-After-Report-Finds-No-Evidence-of-Vote-Tampering?slreturn=20140728210207.

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.