For those who took the recent Supreme Court decision that gutted the Voting Rights Act as vindication that discrimination no longer lingers deep in the heart of Texas, one only need look back to the summer of 2012 to see evidence to the contrary.
Last summer, a federal court ruled that Texas Republican lawmakers discriminated against minority voters while redrawing voting districts in 2011. U.S. Circuit Judge Thomas Griffith wrote that the 2011 redistricting map contained numerous irregularities and that Texas lawmakers drew the new boundaries “with discriminatory purpose.”
As Ari Berman reported in The Nation:
Only by reading the voluminous lawsuits filed against the state can one appreciate just how creative Texas Republicans had to be to so successfully dilute and suppress the state’s minority vote. According to a lawsuit filed by a host of civil rights groups, “even though Whites’ share of the population declined from 52 percent to 45 percent, they remain the majority in 70 percent of Congressional Districts.” To cite just one of many examples: in the Dallas-Fort Worth area, the Hispanic population increased by 440,898, the African-American population grew by 152,825 and the white population fell by 156,742. Yet white Republicans, a minority in the metropolis, control four of five Congressional seats. Despite declining in population, white Republicans managed to pick up two Congressional seats in the Dallas and Houston areas. In fact, whites are the minority in the state’s five largest counties but control twelve of nineteen Congressional districts.
Now that same map has landed in court again. Because Section 4 was thrown out by the Supreme Court, states like Texas no longer have to get pre-approval — or “preclearance” — from the Department of Justice before redistricting or enacting new voting laws. But there is a way to get preclearance back under Section 3 of the Act, a section that the justices left intact. The plaintiffs in the case — the Texas chapter of the NAACP, Democratic Senator Wendy Davis (yes, that Wendy Davis of the famous filibuster) and the Texas state legislature’s black caucus — are using the 2011 map as evidence that state lawmakers were intentionally discriminatory when they drew the boundaries and thus should be bound by preclearance requirements again. MSNBC’s Adam Serwer calls Section 3 the “secret weapon that could save the Voting Rights Act,” but he writes that success is far from guaranteed. He explains:
To impose preclearance on a jurisdiction not covered by the now-defunct Section 4 formula, you have to prove that officials intended to discriminate. Under the old formula, all that had to be proven was that the election law changes would have discriminatory effects — precisely because most people are smart enough to hide when they’re deliberately trying to discriminate.
In Texas, state officials weren’t that smart. Nevertheless, the requirement that deliberate discrimination be proven means that it will be very difficult to subject states that try to disenfranchise minority voters to preclearance, because all they need is a superficial “race-neutral” reason for making the change.
During the 2011 redistricting map case, state lawyers unsuccessfully argued that the 2011 map was nothing more than a partisan power grab that had nothing to do with race. The fact of the matter is that in Texas – and in many other Southern states – partisan politics has everything to do with race. Since 1965, Thomas Edsall writes in The New York Times, the number of black representatives in southern statehouses “has grown from fewer than five to 313, all but a handful as Democrats.” But during those same 40 years, Southern whites defected from the Democratic Party in huge numbers. And in 2012 — with the addition of Arkansas after 138 years of Democratic rule — the GOP has gained control of all 11 statehouses in the former Confederacy. Edsall writes:
Despite their growing numbers, the power of Southern blacks has been dissipated. African-American Democratic officials — according to data compiled from academic research and the Web sites of state legislatures — have been relegated to minority party status. Equally important, an estimated 86 African-Americans who spent years accumulating seniority have lost their chairmanships of state legislative committees to white Republicans.
The loss of these committee positions has meant the loss of the power to set agendas, push legislation to the floor and call hearings. At the state level, “black voters and elected officials have less influence now than at any time since the civil rights era,” wrote David A. Bositis, a senior research associate at the Joint Center for Political and Economic Studies, in a 2011 paper, “Resegregation in Southern Politics?”
For the moment, things in Texas “remain highly unsettled.” The San Antonio Express-News editorial board put it that way in a recent op-ed in which they also characterized Attorney General Greg Abbott’s rush to push through the state’s voter ID law as “unseemly.” The state has asked the courts to dismiss the cases brought last week, but both three-judge panels appear to be considering the challenges seriously.
As Texas Redistricting blogger and Dallas attorney Michael Li told Star-Telegram reporter Mike Norman, “There’s no question this is new territory for everyone.”
If you’re interested in following the events in Texas, we recommend Li’s excellent blog and Rick Hasen’s Election Law Blog for updates on the redistricting cases.