May 2, 2019

SAN ANTONIO — Back in the federal courthouse where most of an eight year-long case has played out, the fight over forcing Texas back under federal oversight of its mapmaking appeared to hinge on whether the state should be held accountable for political maps that never took effect.

The arguments for a return to the days when Texas needed approval of its political districts diverged significantly during a Thursday court hearing before a panel of three federal judges. The state and the plaintiffs — voters of color, civil rights groups and Democratic lawmakers — each appeared to have a judge on their side. One judge was skeptical of any sort of supervision for state lawmakers, while another judge openly considered why Texas should be allowed to redraw its maps without any sort of guardianship given its recent discrimination against voters of color.

But the high-stakes fight — and ultimately the ruling from the three-judge panel overseeing the case — may very well rest on Chief U.S. District Judge Orlando Garcia, who made few remarks during the hearing but summed up the issue in one question.

“Is it actual injury or threatened harm that controls the issue?” Garcia asked.

At issue are a set of congressional and state House maps drawn up by state lawmakers in 2011 that were were never used because they were tied up in court over concerns they undercut the electoral strength of voters of color, particularly the state’s growing Hispanic population. The maps were officially replaced in 2013 amid the legal wrangling, but the panel of federal judges later ruled that lawmakers had intentionally diluted the strength of voters of color in crafting the maps.

Coupled with other discriminatory actions at the hand of state leaders, the plaintiffs pointed to those rulings as proof that Texas has squandered its freedom from the decades-long federal oversight that automatically blocked new voting laws or political maps until the state proved they did not harm voters of color.

Like other states with tarnished electoral histories, Texas was required to meet that requirement until 2013, when the U.S. Supreme Court gutted the federal Voting Rights Act. Though it upended long-standing protections for voters of color, the high court left open the possibility that findings of recent, purposeful discrimination could land states back under federal supervision through a legal mechanism known as “bail in.”

“If the bail in statute means anything…it has to apply to Texas redistricting,” said Allison Riggs, a lawyer with the Southern Coalition for Social Justice who is representing some of the plaintiffs. “Texas redistricting is where the state again and again and again at every level of government has shown a resistance to recognizing the political power of minority voters.”

Thursday’s hearing marked the beginning of the final — and perhaps the most significant — stage of the long-running legal fight over the state’s political maps. The case is poised to serve as the latest test of whether the federal Voting Rights Act can still serve as a safeguard for voters of color. If the panel does not invoke bail in, the 2021 redistricting cycle would mark the first time in nearly half a century that Texas could implement new legislative and congressional districts without first proving they don’t undercut the electoral power of voters of color.

While under federal supervision, Texas proved to be a repeat offender. In their briefs to the court ahead of the hearing, the plaintiffs noted that state lawmakers passed one or more redistricting plans that were declared unconstitutional or in violation of the Voting Rights Act in every decade since 1970.

Given the rulings of intentional discrimination against the state, the plaintiffs are asking the court to put the state back under oversight of its mapmaking for up to 10 years to cover the next round of redistricting when the state will again rejigger its political boundaries to account for population growth.

But Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals appeared hostile to that proposal, repeatedly alluding to a 2018 Supreme Court ruling in which the court signed off on most of Texas’ current political boundaries and pushed aside claims that state lawmakers intentionally discriminated against voters of color when they replaced the 2011 maps in 2013.

“This has already been going on for eight years, and you want 10 more despite the Supreme Court saying it’s over,” Smith said. “I don’t understand.”

The state’s deputy solicitor general, Matthew Frederick, echoed that sentiment. He argued that Texas shouldn’t be placed back under federal oversight based on findings against maps that were never used, especially after the Supreme Court found no intentional discrimination behind the state’s 2013 effort to replace those maps with those offered up by three-judge panel in 2012 as an interim fix to allow elections to move forward that year.

Bail in “cannot be justified when a state adopts and accepts judicial remedies,” Frederick said.

“So your argument is we messed up and intentionally discriminated at first, but the court fixed it and as a result of the court fixing it we’re OK?” asked federal District Judge Xavier Rodriguez.

Frederick responded that those violations weren't enough to invoke bail in because the state had not engaged in widespread, rampant discrimination. He pointed out that any sort of discrimination found by the court in Texas did not amount to the widespread racism that marked the 1960s, when states kept voters of color from casting votes by continuously replacing barriers —for example , requirements that black voters guess how many bubbles are in a bar of soap — with other impediments, such as literacy tests, as they were deemed unconstitutional.

But Rodriguez continued to question Frederick over whether the state was “engaging in more subtle forms of discrimination” that it then attempted to wash away by replacing discriminatory laws with court fixes and then claiming there was no harm for which it could be held accountable. He pointed to the state’s defense of its strict voter ID law that, like the state maps, was eventually replaced with a court remedy after a judge found it was enacted with discriminatory purpose.

“But for this court’s changes to those 2011 plans, the state would’ve continued to try to continue to implement them,” Rodriguez said. “That’s what the whole [bail in] paradigm is trying to prevent from happening again.”

To the state’s legal foes, the maps enacted by Texas in 2011 continued a pattern of discrimination that stretches to this year, when state leaders launched a review of the voter rolls for supposed noncitizens that ended in a legal settlement last week after it was revealed that tens of thousands of the people flagged by the state were U.S. citizens.

The botched voter review was key context to the redistricting case because state leaders moved forward with that review even though they knew that naturalized citizens — who in Texas are far more likely to be Hispanic or Asian — would have their voting rights questioned, argued Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund.

“The purpose of bail in is to stop discrimination before it happens so that minority voters don’t have to vote under a discriminatory system,” Perales said after projecting on a screen the litany of Texas counties where the panel found state lawmakers discriminated against voters of color.

It’s unclear when the three-judge panel, which has proved to be unhurried in its deliberations, will rule on the matter, but the verdict will likely be appealed to the Supreme Court. With the next round of redistricting on the horizon, the voters of color, civil rights groups and Democratic lawmakers fighting the state will be pushing to resolve the issue by next year.

Because few courts have invoked the bail in provision of the Voting Rights Act since the Supreme Court gutted the federal law, the Texas case could set a national standard when it eventually reaches the high court. But on Thursday, Rodriguez seemed more focused on the effect it could have in a changing state with a long history of stymying the rights of voters who will eventually become a majority.

“Everybody understands what the demographics of this place is looking like. It’s probably going to get more Hispanic and more minority,” Rodriguez said. “What’s to stop the Republican, white-controlled Legislature from engaging in the same behavior the next time around?”

Sitting with the state’s attorneys after the U.S. Department of Justice switched sides in the case, John Gore, head of the DOJ’s civil rights division, offered that anyone aggrieved by future political maps would still be able to challenge them as unconstitutional and discriminatory.

“And they’ll have to go through an eight-year cycle to establish that?” Rodriguez asked.

"In long-winding case, court considers federal oversight of Texas redistricting" was first published at by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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