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.
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.
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
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
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
direction from a higher court, we decline to break new ground on this
particular issue,” the court said in December.
themselves have acknowledged their second argument on whether Section 2
applies to redistricting is “currently foreclosed by precedent.”
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
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
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.
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.
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
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.
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.
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.
“aggressive attacks” on Section 2 have come as it’s getting harder for
Republicans to comply with the law while preserving their power, Hasen
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.
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.
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
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.”