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So … The Plaintiffs Won the Texas Redistricting Lawsuit, Right? Right?

I. TL;DR Q&A

(1) Ugh! This blog post looks like it’s really long.

So, just tell me: Did the plaintiffs in the 2011 Texas redistricting case win or not?

ANSWER: On March 10, 2017, the federal redistricting panel reviewing contested matters relating to the 2011 redistricting of Texas congressional districts issued an opinion finding that with respect to the following congressional districts …

(2) No! Too much! I mean seriously. Just tell me yes or no. Did the plaintiffs win or not? Yes or no? That’s all I want.

ANSWER: Yes. The plaintiffs won.

(3) Great! So that means (if, for example, you live in Austin) I’m back in Lloyd Doggett’s district, right? I mean, you live in Austin, too, right? — you know what I’m talking about. So anyway, I’m not in Lamar Smith’s district anymore, right?

ANSWER: Um.

The boundaries haven’t actually been changed yet (except that the boundaries were changed by a remedial 2012 legislative redistricting plan that replaced the 2011 plan that is the original subject of this suit).

However, I should point out that the boundary lines for Representative Smith’s district (Congressional District 21) were not directly in dispute, and would only be changed as a result of changes that might be implemented for the affected districts (CD-23, CD-26, CD-27, and CD-35) that were found to be unconstitutional racial gerrymanders.

I should also point out that the court’s order relates to the 2011 legislative redistricting plan, and not to the remedial 2012 redistricting plan that was put in place temporarily in advance of the 2012 elections; the plaintiffs allege that the 2012 plan is also flawed, and that determination is still pending.

(4) What?

ANSWER: The decision issued by the redistricting panel did not change any existing U.S. House of Representatives boundary lines. That work is left for the Texas Legislature, or for the court. Other work is still pending as well, including an expected determination as to whether the contested state legislative districts were also unconstitutional racial gerrymanders, and whether the State will be subject to preclearance in response to intentional racial discrimination per Section 2 of the Voting Rights Act. But if it’s any comfort to you, the panel did find that Lloyd Doggett’s district (CD-35) was invalidly drawn.

(5) But … what about the 2018 elections? I mean the U.S. House of Representatives elections?

ANSWER: Presumably, we’ll either have new congressional boundaries in place in time for the 2018 election cycle, or we won’t.

(6) Augh! That’s no answer! You know, its just this sort of fiddly, picky, pedantry that makes people hate lawyers, right?

ANSWER: Yes.

II. TS;DU (“Too Short; Didn’t Understand”): here’s some more context.

Here’s some background for those of you who might be curious about what’s happening with political redistricting in Texas.

  • Back in 2011, a number of affected candidates and voters filed suit challenging aspects of the decennial legislative redistricting plan adopted by the Texas Legislature. A core group of plaintiffs focused their concerns on how U.S. Congressional seats were apportioned, and while the suit also concerned state legislative district boundaries, most of the national public media interest in the Texas redistricting suit has been on those key seats in the U.S. House of Representatives.
  • The case has followed a convoluted path, in part because of various appeals and procedural challenges over the years. To get some sense of just how convoluted this path is, check out the summary of the case offered by the Brennan Center for Justice, and the Moritz College of Law’s archive of the court filings made by the parties since 2011.
  • Currently the matter is before the Federal District Court for the Western District of Texas, San Antonio Division, and more specifically is in the hands of a panel of three judges who were assigned to the case for the purpose of resolving the redistricting disputes.
  • On January 2, 2017, some of the plaintiffs filed a motion for an entry of a judgment by no later than January 18, 2017; this motion was rejected. The unpublished response from the court on January 5, 2017, was that the opinion would be issued “as soon as possible” but not on any specified timeline.
  • Apparently to prove that the court was in fact moving with all possible speed to resolve the matter, the panel released its decision and findings of fact late in the day on Friday, March 10, 2017, instead of waiting until the following Monday.
  • The decision was, needless to say, big news for those of us who are interested in redistricting questions — the majority opinion found that four of the State’s congressional districts had been drawn with racially discriminatory intent.
  • In addition to being big news, the decision was also physically … well … big, reflecting the enormous volume of geographic and voting demographic data that the court had been obligated to review. The opinion is about 200 pages long, with another 443 pages contained in the related findings of fact (the linked article briefly summarizes how “findings of fact” function as the rough equivalent of judge-made “jury findings” in the context of non-jury trials. See also this short continuing legal education .pdf that describes “findings of fact and conclusions of law” in the context of state and federal court decision-making generally)Even the dissenting opinion recognized the monumental effort of the court and its staff in assembling and synthesizing this quantity of legal material.
  • The March 10 opinion has a number of significant and important stylistic features, not the least of which is that the majority drafted a meticulously thoughtful treatment and framework for answering one of the central philosophical problems of modern redistricting — namely, what to do when a claim of partisan advantage is used as a proxy for intentional racial discrimination.
  • The opinion was also drafted with great care to provide satisfactory answers to questions about how to serve the voting interests of what might be regarded as superficially racially homogeneous but politically and geographically distinct communities of interest.
  • Conservatives who are unhappy with the decision will be likely to quote the stinging and strongly partisan dissent, which regards the whole of the redistricting dispute as having been rendered moot by the passing of time, and which characterizes the legal arguments made by the former Obama administration-era Department of Justice attorneys (who had been aligned with the plaintiffs) as an insulting and unprincipled effort to characterize the lawmaking functions of the Texas Legislature as motivated by overt racism.
  • Significantly (and, I would say unfortunately for the plaintiffs), the majority opinion declined to draw new district boundaries to correct the racially discriminatory effects caused by the 2011 redistricting plan. Instead, the court left that task pending for a future examination of the 2012 interim maps that were formally adopted as permanent by the Texas Legislature for elections starting in 2013.
  • Most news coverage of the decision in Perez et al. v. Perry et al. treats this result as a huge and important victory for the plaintiffs, with findings of fact that will support the reimposition of federal oversight and preemptive analysis of future changes in Texas election procedures. The opinion is well-drafted to withstand appellate scrutiny, and is as good a decision as could have been hoped for with respect to eventual Supreme Court review.
  • My deep-seated pessimism (which is partly congenital, and partly informed by the political world we now inhabit) makes it harder for me to feel upbeat about this victory. In the Trump administration, is there any legal institution currently inclined or capable of effectively enforcing the constitutional rights of minority voters? I think the answer is no.

III. So now what? 

So, what can a Texas voter — or any U.S. voter, for that matter — who is interested in fair and actually representative elections do?

  1. Work to elect lawmakers who respect the needs of minority voters in the context of redistricting.
  2. As a corollary to point 1, remove lawmakers from office who engage in discriminatory gerrymandering.
  3. Tell your state legislators that you support bipartisan redistricting reform, and that you judge your lawmakers’ job performance in part based on how well those lawmakers uphold the precepts of the Voting Rights Act.

 

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?

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.

 

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.