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Federal court denies preclearance on all redistricting maps

The long-awaited ruling in the preclearance lawsuit by the DC Court has been handed down, and it’s a clean sweep for those who claimed that the new maps violated the law.

Texas lawmakers didn’t comply with the Voting Rights Act when they drew new maps for congressional, state Senate and state House districts, a federal court in Washington, D.C., ruled Tuesday.

“Texas … seeks from this court a declaratory judgement that its redistricting plans will neither have ‘the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [language minority group]”, the judges wrote. “We conclude that Texas has failed to show that any of the redistricting plans merits preclearance.”

[…]

The court wasn’t ruling on interim maps drawn by federal judges — the maps in use for the current election — but on those drawn by state lawmakers last year. Lawyers are still looking through the opinions for anything that might disrupt the current elections.

Nina Perales, litigation director for MALDEF — the Mexican American Legal Defense and Education Fund — said there might not be time to draw new maps before the November elections even if they’re warranted. One question is whether problems exposed in the plans drawn by legislators “infected” the plans drawn by the federal judges in San Antonio. “I don’t think it’s feasible to change the lines for November,” she said. Perales called the federal court ruling “the final nail in the coffin” for the plans drawn by state lawmakers, especially since the San Antonio judges outlined several other legal problems with those same maps earlier this year.

The outcome of Abbott’s appeal and the analyses being done by the various parties in the redistricting legislation will determine which lines, if any, get redrawn before the 2014 elections.

Some have made up their minds. “The question of whether we’ll go back to the district court and ask for additional relief, the answer is yes,” said Jose Garza, attorney for the Mexican American Legislative Caucus. “Will we ask if this will be implemented for the November elections? We’re still analyzing that.”

[…]

“We conclude that Texas has not met its burden to show that the U.S. Congressional and State House Plans will not have a retrogressive effect, and that the U.S. Congressional and State Senate Plans were not enacted with discriminatory purpose,” the judges said in their opinion. “Accordingly, we deny Texas declaratory relief. Texas has failed to carry its burden that Plans C185, S148, and H283 do not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under section 5 of the Voting Rights Act.”

You can read the full opinion here, and I encourage you to do so, at least through the conclusion on page 72. There’s a lot of other analysis out there, and I’ll link to it later in this post, but these are the highlights as I see them:

– The opinion was unanimous on all points except for whether the original CD25 (the districts that were in place for elections through 2010 are referred to as “benchmark” districts, while the ones in the state redistricting plans are “enacted”) qualified as a coalition district, i.e., one in which minorities had the ability to elect a candidate of their choice, and on whether the overall Congressional map was retrogressive. The San Antonio court, by contrast, ruled 2-1 in the suit that led to the creation of the interim districts that were later tossed out.

– The court found evidence of discriminatory intent in the Congressional and Senate maps. The latter is significant because they did not find that SD10, the only district at issue in that map, met the criteria for being a coalition district. Further, note that the Justice Department did not specifically contest the Senate map – the other intervenors did – meaning that in this case the state got a harsher result than the would have by going to the Justice Department for preclearance instead of filing the lawsuit with the DC Court as they chose to do.

– The court did not specifically rule on the issue of discriminatory intent in the House map because they ruled it to be retrogressive. However, they did make the following remarkable comment about the House map and how it was drawn:

First, the process for drawing the House Plan showed little attention to, training on, or concern for the VRA. See, e.g., Trial Tr. 61:1-66:23, Jan. 20, 2012 PM. And despite the dramatic population growth in the State’s Hispanic population that was concentrated primarily in three geographic areas, Texas failed to create any new minority ability districts among 150 relatively small House districts.

These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117. As detailed above, the mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper. They accomplished this by switching high-turnout for low-turnout Hispanic voters, hoping to keep the SSVR level just high enough to pass muster under the VRA while changing the district into one that performed for Anglo voters. This testimony is concerning because it shows a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.

Finally, the incredible testimony of the lead House mapdrawer reinforces evidence suggesting mapdrawers cracked VTDs along racial lines to dilute minority voting power. Texas made Interiano’s testimony the cornerstone of its case on purpose in the House Plan. Trial Tr. 45:22-25, Jan. 17, 2012 AM (“[O]ur [discriminatory purpose] case rests largely on the credibility of one person. His name is Gerardo Interiano.”). Interiano spent close to a thousand hours — the equivalent of six months of full-time work — training on the computer program Texas used for redistricting, id. at 131:3-5, yet testified that he did not know about the program’s help function, id. at 85:18-25, Jan. 25, 2012 PM, or of its capability to display racial data at the census block level, id. at 93:13-19, Jan. 17, 2012 PM. As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano. See id. at 93:1-15; id. at 88:5-89:17, Jan. 25, 2012 PM. The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred.

This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental.

Ouch. That starts on page 70, if you’re curious. The reason why the rulings on discriminatory intent are important is explained by Rick Hasen:

The evidence of discriminatory intent is important not just for the likelihood that the Supreme Court will affirm this decision even if it disagrees on some aspects of the retrogression standard. It also serves as some evidence which could be used to argue, in the Shelby County case or elsewhere, that covered jurisdictions still discriminate on the basis of race in making voting-related decisions. (If this was not done to Anglo Democrats, the evidence is even stronger than if it could be explained on the basis of pure partisanship.) The Court was careful to note that Texas did not challenge the constitutionality of section 5 in this case. And the Court rejected a number of Texas’s arguments that it should read section 5 narrowly to avoid a constitutional question. Whether the Supreme Court will agree with the district court on this point is anyone’s guess. Indeed, this case could be mooted if the Supreme Court strikes down Section 5 (in the Shelby County case or another) before the Court decides this case on the merits.

No question that the Republicans treated Sen. Wendy Davis shabbily, but they really stuck it to the three African-American members of Congress. Read the excerpt Hasen highlights to see what I mean. Indeed, read the whole opinion, it’s worth your time. The justices really slap around the state’s main expert, Professor John Alford, and they note repeatedly that the state often simply refused to respond to various arguments made by the intervenors and the Justice Department. It’s quite the bravura performance.

So will any of this affect the 2012 election? Michael Li, who has some brief analysis of the opinion, suggests that it could be done.

Texas Attorney General Greg Abbott has taken the position that the opinion will not affect the November election, which he says will proceed on the interim maps put into place back in February.

On the other hand, it is certainly possible to see a move to adjust those interim maps in the San Antonio court. For example, CD-23 arguably could be restored to its full benchmark configuration fairly easily. Similar arguments might also be made with respect to HD 117 and 149, which are wholly contained in their respective counties (to the extent redistricting plaintiffs think that not enough changes were made to those districts in the interim maps).

Other changes would seem harder. But with control of Congress potentially on the line, lots of people are going to be looking at the opinion closely over the next few days.

Changes for this year – at least conceptually – are not out of the question. In 1996, for example, the three-judge panel ordered jungle primaries in a number of congressional districts which were held on the date of the November election, with a runoff a month later.

Some of the intervenors are leaning in that direction, as you saw in the Trib story. AG Abbott will appeal to the Supreme Court, which may or may not have an effect on that. He’s also seeking to gut the Voting Rights Act in the process, as Hasen alluded to above. On a side note, we may also get a ruling in the Voter ID preclearance case, since it would need to be precleared by August 31 to be able to be implemented this year.

So that’s where we stand for now. The Trib story has a bunch of reactions, as does Texas Redistricting. Hair Balls, BOR, Stace, PDiddie, DBN, and Socratic Gadfly have more.

UPDATE: Here’s more from SCOTUS Blog, which reminds me that the opinion also repeatedly hammered on Texas’ long history of losing redistricting lawsuits. Texas Redistricting has a roundup of other links.

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7 Comments

  1. Mainstream says:

    I am bothered by the evidence that voting precincts were split along racial/ethnic lines. This was a big deal in the case against the Democrat gerrymander back in 1990, which was undone by the courts in Bush v. Vera and resulted in the special congressional elections in 1996. I find it hard to imagine how the professional staff at the Texas Legislative Council would have allowed that to happen in the maps under challenge here. Basically what the liars said in the 1990s was that when the Democrat legislature split precincts in the Heights and Montrose separating the black and white blocks into Craig Washington’s district and the Hispanic blocks into the new CD 29 (Reyes v. Green), that they were really separating Hispanic democrats from white Republicans, even though there is no voting result data below the precinct level available. Later they even tried to claim they had overlaid primary participant lists over the maps.

    My cursory reading of the opinion indicates that the DC court believes that blacks, Hispanics, and Asians can form joint minority groups entitled to Voting Rights Act protection. In other words, if there are not enough blacks to form their own district, you can add in other minority groups to be required to create new districts for this supposedly homogenous, united minority population. The 5th Circuit I believe has ruled the opposite. So the opinion sets up a conflict among federal appeal circuits, and makes this an issue likely to be resolved by SCOTUS.

  2. jonathan davis says:

    The opinion was issued by a three-judge panel of the U.S. District Court for the District of Columbia; it was not issued by United States Court of Appeals for the District of Columbia Circuit. So unless I’m mistaken, it seems Mainstream’s assertion that “the opinion sets up a conflict among federal appeals courts” is incorrect.

  3. Mainstream says:

    Jonathan, you may be technically correct, but I believe statewide redistricting and VRA preclearance cases are heard by a special hybrid court, under a special statute. This court had one judge from the DC circuit, and two district court justices. I also believe the appeal is directly to the US Supreme Court, bypassing the Court of Appeals for the DC circuit altogether. I also recall that these are not resolved by SCOTUS on a petition for certiorari, in which they can decline to consider such a case, but instead are appeals by right which must be evaluated by the Supreme Court.

    If my understanding of the law is deficient, I trust someone will provide a correction.

  4. jonathan davis says:

    “Section 5 provides two methods for a covered jurisdiction to comply with Section 5. The first method mentioned in the statute is by means of a declaratory judgment action filed by the covered jurisdiction in the United States District Court for the District of Columbia. A three-judge panel is convened in such cases. The defendant in these cases is the United States or the Attorney General, represented in court by attorneys from the Voting Section of the Civil Rights Division. Appeals from decisions of the three-judge district court go directly to the United States Supreme Court.”

    http://www.justice.gov/crt/about/vot/sec_5/about.php

  5. […] of the questions that came out of Tuesday’s redistricting preclearance ruling was whether or not it would affect the interim maps for this year. Some of the intervenors have […]

  6. […] court rulings last week, with the state of Texas losing and the voters of Texas winning as both the redistricting maps and the voter ID law were found to be […]

  7. […] as you know, the state of Texas had its rear end handed to it in both the redistricting and voter ID preclearance lawsuits. Both of these rulings will be appealed to the Supreme Court, […]

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