Beyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.
For decades, redistricting in Texas has tracked a familiar rhythm — new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.
The pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.
Those protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated — in some cases intentionally — against voters of color.
But tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.
First, the Texas attorney general's office is arguing that private individuals — like the average voters and civil rights groups now suing the state — don't have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.
Second, the state argues that Section 2 does not apply to redistricting issues at all.
Should either argument prevail — which would almost certainly require it to be embraced by a conservative U.S. Supreme Court that has already struck down other portions of the law — the courthouse door will be slammed shut on many future lawsuits over discriminatory map-drawing and voting practices.
"Fundamentally, this Supreme Court thinks we are past the time in which we need the Voting Rights Act, so of course if you're a state like Texas, you're going to bring every argument that's ever been made to challenge the constitutionality of the rest of it," said Franita Tolson, a vice dean and law professor at the University of Southern California Gould School of Law.
For now, the Texas redistricting fight is in the hands of a three-judge panel in El Paso. An assembly of individual voters, organizations that serve Texans of color and the U.S. Department of Justice is challenging the redrawn maps, claiming they illegally diminish the voting strength of voters of color while giving white voters more political power.
The case won't go to trial until the fall, but the panel has already recognized Texas' attempt to steer voting rights law onto new terrain.
The state's challenges to Section 2 first surfaced in its failed efforts to convince the court to throw out the lawsuits without even considering the merits of the challengers' claims. The panel — made up of one Democratic and two Republican appointees — rejected the argument on standing, deeming it "ambitious" for a court to agree with the state in light of "precedent and history."
"Absent contrary direction from a higher court, we decline to break new ground on this particular issue," the court said in December.
State lawyers themselves have acknowledged their second argument on whether Section 2 applies to redistricting is "currently foreclosed by precedent."
But in consequent filings, the state has been clear it is inserting the arguments into the case to lay the groundwork for appeals and possible consideration by the Supreme Court — where, experts in voting law and civil rights advocates say, the state may find a more receptive audience.
The attorney general's office did not respond to a request for an interview with a member of the legal team on the case. In its briefs, the state argues the Supreme Court has never actually decided whether Section 2 gives private individuals "implied" standing to sue, quoting from a recent opinion by conservative appointees to the court that describes the issue as "an open question."
The state's claim that Section 2 does not apply to redistricting was initially contained within a footnote but remains brief, pointing to equally brief statements by conservative appointees to the court.
Since its enactment in 1965, the Voting Rights Act has proven a powerful stopgap to the state's attempted discrimination against its own residents. Texas has not made it through a single decade without a federal court ruling it violated federal law by illegally discriminating against voters of color in some fashion.
For much of that time, the legal fights took place under a process known as preclearance; Texas and other states with a history of discrimination were required to get federal approval for new districts. That put the burden on the state to prove that its redistricting work did not set back voters of color — a test which the state repeatedly failed.
Noting that conditions for voters of color had "dramatically improved," the Supreme Court dismantled the preclearance regime in a 2013 decision. As part of its reasoning, the court pointed out that Section 2 would continue to stand as a bulwark against voter suppression.
But the high court has subsequently weakened what remains of the Voting Rights Act, including a decision in Texas' last redistricting cycle granting state lawmakers a high presumption of acting in "good faith" when enacting new maps — which legal experts have argued makes it harder to convince the courts of violations.
The turnover at the Supreme Court has cracked the door for "audacious attacks on Section 2," that would have "never had a chance" under previous iterations of the court, said Rick Hasen, a law professor at the University of California, Irvine who specializes in voting law. Texas is trying to push the door wide open.
In legal briefs, Texas' argument that Section 2 does not apply to redistricting relies almost exclusively on a series of comments in opinions by Justice Clarence Thomas, who has plainly endorsed the idea in cases dating back to 1994. Justice Neil Gorsuch, a Trump appointee who joined the court in 2017, echoed the view in one of Thomas' recent opinions.
In a recent case over Arizona voting laws, Thomas and Gorsuch also joined an opinion indicating they agreed with the argument Texas is offering now that private individuals cannot sue to enforce the Voting Rights Act.
The fallout if the Supreme Court agreed with the state on either argument would be radical, upending long established procedures for litigating claims of discrimination in voting and redistricting, and making it harder to enforce what has endured as the chief federal protection for voters of color in a post-preclearance world.
Covering its bets, the state is also pressing a backup argument — that even if individual voters are allowed to sue under Section 2, organizations that serve voters of color cannot bring claims on their behalf. That could knock out of the box groups like the NAACP and LULAC who may have more resources and membership across the state to prop up the complex challenges.
If affirmed by the court, that prospect would put even more pressure on private individuals to protect themselves from alleged discrimination by the state, said Noor Taj, a lawyer with the Southern Coalition for Social Justice who is representing various civil rights and community groups that serve Texans of color, particularly Asian Texans, in a lawsuit against the maps.
"It's either taking their rights altogether or increasing the burden," Taj said. "Both ends of that are problematic and incorrect."
If the high court ultimately decides redistricting lawsuits simply aren't allowed under Section 2, the recourse left for Texans of color to challenge political maps would be litigation under the U.S. Constitution's broader promise of equal protection.
That would require challengers to show lawmakers intentionally discriminated against them — "which is the hardest case to win, particularly before a Supreme Court," said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.
The state's efforts to overturn protections for voters of color is ironic given its long history of violating the same law it is now looking to gut, said Perales, who is suing the state over its latest maps on behalf of a group of individual voters and organizations that represent Latinos.
"Since the beginning of the modern era of decennial redistricting, Texas has been found liable for violating the voting rights of Latinos in every single cycle," Perales said.
The more "aggressive attacks" on Section 2 have come as it's getting harder for Republicans to comply with the law while preserving their power, Hasen said.
In the first decade freed from preclearance, the Republican-controlled Legislature last year used the redistricting process to draw maps that solidified the GOP's political dominance in Texas while weakening the influence of voters of color.
To that end, Republicans looked beyond packing voters of color into the fewest number of districts, taking an almost surgical approach to slicing up diverse suburban communities that were trending against them. Voters of color in those areas were left stranded in sprawling districts that stretch into more rural areas where majority white electorates will overpower their votes.
The Supreme Court's recent posture on voting rights "has emboldened states like Texas to do what they think they can do to enhance the power of white Republicans in the state of Texas and roll the dice in front of a much more favorable judiciary than they faced a decade ago," Hasen said.
Republican lawmakers defended their map-drawing, arguing districts were reconfigured to equalize population while following various traditional guidelines, such as preserving political subdivisions, communities of interest and geographic compactness. One of the chief map-drawers characterized the drawing as a "race-blind" exercise with maps later presented to legal counsel who cleared them as compliant with the Voting Rights Act.
But the redistricting sprint — under complete Republican control — drew complaints for being rushed and closed off. Throughout the process, the public was limited in its ability to weigh in on the new maps. Some public hearings were carried out within days of new maps being revealed or with just a 24-hour notice. Much of the feedback from Texans who told lawmakers their maps were not reflective of their communities was ignored.
In committees and on the House and Senate floors, the fate of the GOP's drafting often appeared to be predetermined, sure to advance even before the public or Democratic lawmakers had been heard.
The state's current effort to now undermine protections for voters of color is an extension of its pattern of manipulating the rules at the expense of voters of color it has historically discriminated against, said Tarrant County Commissioner Roy Brooks.
Brooks is among the plaintiffs in the lawsuits over the new maps who would be unable to sue the state under the scenario Texas is looking to cement in challenging the Voting Rights Act.
"It very clearly demonstrates that those in power are determined to hold onto it by any means necessary," Brooks said. "If that means trampling on the rights of Black and Hispanic voters, then they are more than willing to do that again and again and again."
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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2022/04/04/texas-redistricting-voting-rights-act/.
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