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Some Texas voting rights lawsuit updates

This has been a busy week for litigation related to voting rights issues in Texas. Here are updates to some cases, all of which happened this past week.

From Texas Redistricting:

The three-judge panel in the Texas redistricting case has set a status conference for April 27, at 9:30 a.m. in San Antonio to discuss a trial schedule for the remaining claims in the case as well as the redistricting plaintiffs’ request to block the state’s use of its current congressional plan (Plan C235) on the grounds that defects found by the court in the 2011 plan continue to exist in the current plan. The court directed lawyers for the state to be prepared to discuss at the status conference “whether the Legislature intends to take up redistricting during this legislative session to remedy any violations that persist in the 2013 plans.”

The court also asked the parties to be ready to discuss the timing for its consideration of requests that Texas be bailed back into preclearance coverage under section 3© of the Voting Rights Act.

A copy of the court’s order setting a status conference can be found here.

See here and here for the background. The plaintiffs want a new map in place by July 1.

A couple of days after that happened, the plaintiffs responded.

On Friday, plaintiffs in the Texas redistricting responded in a court filing to the State of Texas’ position that it was premature to consider the plaintiff’s request to block and require a redraw of the state’s congressional map (Plan C235).

In the filing, the plaintiffs told the court that while there was sufficient time to remedy constitutional defects in the map if the process began now, “delaying all relief until the Court schedules and holds another trial and issues another merits determination would raise a serious risk that Plaintiffs will be forced to vote in yet another election under unconstitutional districts.” The plaintiffs noting that filing for the 2018 Texas primary will open on November 11 and that a number of steps would have to occur to finalize any map changes, including redrawing precinct boundaries.

Circle April 27 on your calendar. We won’t have final answers to these questions then, but we should have some idea of what answers to expect.

From the Texas Civil Rights Project:

[On April 3], Chief Judge Orlando Garcia of the U.S. District Court for the Western District of Texas denied the state’s motion to dismiss Stringer v. Pablos, TCRP’s “motor voter” case.

This decision provides critical validation of the arguments advanced by the plaintiffs — disenfranchised Texas voters — who challenge voter registration processes at the Department of Public Safety under the National Voter Registration Act, or NVRA, and the U.S. Constitution.

One by one, Judge Garcia considered the state’s arguments for dismissal and rejected them. Judge Garcia found the state’s current procedures “inconsistent with the plain language of the NVRA,” refusing to adopt “circular and self-defeating” interpretations of the NVRA offered by the defendants. Instead, the Judge expressly found that the NVRA applies to the thousands of online transactions Texans initiated through DPS.gov every day. This ruling means that the Secretary of State should be registering and updating voter registrations for all of these individuals as a matter of course unless they opt out. Moreover, any alleged interest in avoiding the upfront expense in creating a modern system cannot justify “the burden imposed on voters” under the Equal Protection Clause.

From the beginning, TCRP has argued that “motor voter” failures have excluded countless eligible voters from the Texas electorate. The judge acknowledged the systemic nature of the state’s actions, noting that the plaintiffs had “produced evidence that thousands of Texans submitted complaints to the state that related in some way to DPS’s processing of voter registration information through its website.”

Judge Garcia’s decision comes on the heels of sanctions imposed against Texas on February 17th for causing undue delay and for repeatedly, and without justification, ignoring court orders to provide the necessary documents to move forward with the case. TCRP represents the plaintiffs with co-counsel at Waters Kraus LLP.

Mimi Marziani, Executive Director with the Texas Civil Rights Project, said:

“Today’s opinion is a resounding victory for the countless Texas voters who have been disenfranchised by the state’s failure to adhere with federal law. With this decision, we are hopeful that we can resolve the case before the 2018 election so that every eligible voter can cast a ballot that counts.”

See here, here, and here for some background. Link via Rick Hasen.

From the Express News:

A federal judge has denied the state of Texas’ attempt to quash a lawsuit that challenges the way the state elects judges to the Texas Supreme Court and Court of Criminal Appeals.

Seven Hispanic voters (six from Nueces County and one from El Paso) and a civic organization, La Unión Del Pueblo Entero Inc., allege in the suit that Latino candidates almost always lose statewide elections for judges to the two highest courts in Texas.

In an opinion issued Monday, U.S. District Judge Nelva Ramos ruled that all the plaintiffs have standing to bring the suit under the Voting Rights Act.

The judge rejected the state’s argument that the plaintiffs had failed to state a cause of action under Section 2 of the law, noting that the U.S. Supreme Court has already held that Section 2 applies to judicial elections.

The ruling clears the way for a trial, according to a news release from two law firms and an organization representing the plaintiffs.

See here and here for the background, and here for a copy of the judge’s order. It’s not clear to me what a remedy for this looks like if the plaintiffs ultimately prevail, but in the meantime it will be interesting to see how this plays out. Rick Hasen has one of the press releases mentioned in the story; I couldn’t find any others googling around.

And finally, also from the Express-News:

Proposed legislative changes to Texas’ voter ID law won’t affect a lawsuit’s claim that the law is discriminatory, a federal judge has ruled.

U.S. District Judge Nelva Gonzales Ramos, based in Corpus Christi, made the declaration in an opinion that also allowed the Justice Department to withdraw from the case.

The opinion follows a hearing in February in which — as directed by a federal appeals court, the U.S. Fifth Circuit — she heard more arguments about whether the law, SB 14, was passed with discriminatory intent.

The state argued that lawmakers planned fixes to be made in Austin with a measure called Senate Bill 5.

“The court holds that the Fifth Circuit did not direct this Court to withhold a decision on the discriminatory purpose claim and that the claim is not, and will not be, moot as a result of pending or future legislation,” Gonzales Ramos wrote.

The civil rights groups that brought the suit say the proposed changes, if passed in the newly introduced legislation, are irrelevant and that the GOP-controlled Legislature designed and passed the 2011 voter i.d. law with discriminatory purpose.

See here and here for some background. Judge Ramos did let the Justice Department officially withdraw from the case, so only the private plaintiffs will continue on. Her order can be seen here, in which she sets a status call on June 7 to discuss whether an evidentiary hearing on remedies is required, how long that might take, and what the deadlines for briefs and whatnot should be. This too came via Rick Hasen.

So the TL;dr summary of all this is:

1. The judges in the redistricting case will discuss wrapping up the other items and figuring out what to do with the Congressional map on April 27 with the litigants. This isn’t a hearing, just a discussion of what they all will be doing and when they will be doing it.

2. Similarly, the judge in the litigation to determine (again, under the standards set by the Fifth Circuit) whether the 2011 voter ID law was passed with discriminatory intent will discuss the schedule and logistics with the attorneys on June 7.

3. Two previously filed lawsuits, one that alleges the state of Texas does not comply with federal Motor Voter laws and one that argues that the statewide election of judges violates the Voting Rights Act, survived motions to dismiss.

Whew!

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6 Comments

  1. Mainstream says:

    The remedy in the court case, which is a long shot for many technical and legal reasons, would be to have single member districts for the election of the state supreme court and criminal court of appeals. The two El Paso and Rio Grande Valley districts might elect Democrats, but the other 7 would be even more firmly Republican. It would be a win for Republican lawyers/judges who live in medium sized cities in those areas of the state from which no judges currently come, and would probably mean that current Supreme Court judges who come from the same town would be paired against each other. (Justices John Devine, Eva Guzman, Jeff Brown might all be in the same district). I don’t think we have any current Supreme Court justices form Tyler or Beaumont or Corpus Christi or Amarillo, and those districts might not have incumbents in a single member plan.

  2. ES says:

    @Mainstream

    I think you’re thinking of the current districts for the Texas courts of appeals. But that’s not a good guide:

    (1) There are 13 distinct geographic districts for those courts. (There are 14 courts of appeals, but the 1st and 14th cover the exact same territory; I also think two of the districts in NE Texas have some overlap, but don’t perfectly coincide.) However, there are only 9 seats on the Texas Supreme Court and on the Court of Criminal Appeals.

    (2) The court of appeals district do not have equal populations. For example, 1.8 million people voted in the contested election for Chief Justice of the 1st Court of Appeals (which includes Harris County) in 2016, but only 880,000 voted in the contested election for a seat on the 4th court of appeals (which includes San Antonio).

    As a remedy in this case, the court or legislature would have to draw 9 equally populated geographic districts. Right now the TX Supreme Court is 9 Republicans. If this succeeds, it would be at least 7-2 (the Latino districts would almost certainly elect Democrats).

    I actually think geographic districts would give Democrats even more seats, though still not a majority. Consider the new geographic district that would include Harris County:

    9 million people voted for President in 2016. So each of the 9 Supreme Court districts should have about 1 million voters (in presidential years). The results in the 1st Court of Appeals races in 2016 were: (1) for Chief Justice, 960,000 (Rep) to 886,000 (Dem); and (2) for Seat 4, 942,000 (Rep) to 903,000 (Dem). BUT in Harris County alone, the results were: (1) for Chief Justice, 620,000 (Rep) to 657,000 (Dem); and (2) for Seat 4, 602,000 to 672,000. Harris County might have to be split since it alone had over 1 million voters, but assuming it isn’t, and is created as its own TX Supreme Court district, it would easily be a Democratic district, making the Texas Supreme Court 6 Reps to 3 Dems. A district including Dallas might give Dems a 4th seat.

    I think this would be very good for the Texas high courts. Right now, you have several undistinguished, not-too-bright judges on both courts. And the quality of the opinions suffers from the fact that there are not dissenting views.

  3. Mainstream says:

    No, I was not thinking of the appeals courts districts.

    Based on 2010 population data, each equipopulous Supreme Court district would be 2.8 million. Harris County has 4.1 million and so would be split. While it is possible to split Harris in a manner which results in one Democrat district, it is also possible to split it down I-10 and pair the top with Montgomery and the bottom with Brazoria and Ft Bend in a manner which creates two GOP districts. I would anticipate the GOP legislature would get a crack at doing the districting, and would protect Republican interests, and certainly would have first crack after the 2020 census data is available to redo any interim districts.

    Nonetheless, I do not anticipate this lawsuit to succeed. I expect both Courts to remain elected at large.

  4. ES says:

    @Mainstream

    (1) When you said “Tyler or Beaumont or Corpus Christi or Amarillo, and *those districts*…” it sounded like you were referring to the courts of appeals. The only districts in Texas that are identified by those city/town names are the courts of appeals districts. But no way Amarillo wouldn’t be in the “Lubbock” district if we had 9 equipopulous districts. And no way Eastland would be the center of any of them.

    (2) Very doubtful they could get away with splitting the heart of Harris County in half via I-10. Opens that plan up to challenges for diluting Hispanic and black voters in Harris County. Of course, the legislature is pretty stupid, so they might try that. But if they’re tired of getting slapped down by the courts, they would probably carve out some of the predominantly Anglo parts of northern and/or western Harris County–maybe put those areas in a “Waco” district.

    (3) We’ll see about the merits. But there’s very good evidence of racialized voting patterns in Texas Supreme Court elections and that those patterns disenfranchise Hispanics. Just ask former (Republican) Justices Xavier Rodriguez and David Medina.

  5. Gary Denton says:

    We don’t thank Charles often enough for all that he does.

    This was an important update on important issues nicely summarized.

  6. Gary Denton says:

    Onew way to look at single member Supreme Court districts is to take the congressional districts and each judge will have four adjoining.

    http://bdistricting.com/2010/TX_Congress/TX.png

    Here are the 36 districts drawn automatically with no partisanship.

    http://bdistricting.com/2010/TX_Congress/map.png

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