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Redistricting trial week begins

This will be the main event of the week.

Eight months ahead of the 2018 primaries, Texas and its legal foes on Monday will kick off a week-long trial that could shake up races across the state.

The state and minority rights groups have been squabbling for six years over new political district boundaries drawn following the 2010 census. As part of a long-winding legal battle, a panel of three federal judges this week will reconvene in a federal courthouse here to consider the validity of the state’s political maps and whether changes should quickly be made to the state’s House and Congressional boundaries ahead of the midterm elections. At issue is whether the current boundaries violate the voting rights of millions of Texans of color.

The showdown comes months after the panel of judges found fault with the state’s 2011 drafts of the political maps. In a pair of rulings this spring, the judges also found that Texas lawmakers intentionally discriminated against minority voters in crafting them.

Those rulings did not require an immediate remedy because the state has been running elections since 2013 under court-drawn maps that were crafted amid an election scramble and later adopted by the Legislature.

But the judges are now turning their attention to the existing boundaries.

There’s an overview of how we got here and what is at stake in that story and also in this Statesman story, which notes the time factor:

Don’t expect immediate gratification. When the trial closes Friday or Saturday, the judges will take the matter under advisement — though a written ruling is expected relatively quickly as the court labors under looming election deadlines.

State officials have advised the court that any new maps would have to be ready by around Oct. 1 to meet deadlines for setting precinct lines and to allow candidate filing for the 2018 primaries to begin, as scheduled, in mid-November. Complicating the timing will be the inevitable appeal that the losing side will make directly to the U.S. Supreme Court.

If new maps are needed, the judges likely will order additional input on how to redraw district boundaries, lawyers said Friday.

The maps in question are the Congressional and State House maps that were implemented in 2013. Those maps in turn are basically identical to the interim maps created in 2011 after preclearance was rejected; the Lege adopted them with a couple of tweaks. The state claims that since the current maps are based on ones that had been drawn by the court, they cannot be discriminatory. The plaintiffs note that the 2013 maps differ only a little from the 2011 maps, which were ruled to be discriminatory, and that many of the problematic elements of the 2011 maps exist in the same form in the 2013 maps. The trial this week is to answer the question whether the existing maps are discriminatory, and if so what should replace them and also should the state be bailed back into preclearance under Section 3 of the Voting Rights Act. This Brennan Center article explains it better than I just did, with more details.

Here’s the Trib Day One story. A couple of highlights:

With Texas becoming less white each day, lawyers for minority rights groups opened their push for new maps by parsing the state’s demographic growth, which shows that the population of eligible white voters has significantly declined since 2010.

When asked by federal district Judge Orlando Garcia how this relates to the 2013 maps, the Mexican American Legislative Caucus’ lawyer, Jose Garza, indicated it was proof that Texans of color don’t have proportional representation under the maps currently in place.

“Even today … minorities are underrepresented when measured against population data and population figures,” Garza said.

MALC also presented an alternative map to demonstrate that the state House boundaries could have been drawn in a way that minimized the slicing of municipalities and created additional “opportunity districts” where minority voters are able to select their preferred candidates.

Creating that type of district was not a legislative priority when the House took on redistricting in 2013; lawmakers only made “cosmetic changes” that didn’t “improve the overall map for minority opportunity,” former state Rep. Trey Martinez Fischer testified before the court.

In 2011, state lawmakers drew legislative and congressional maps following the 2010 census, but they were immediately challenged in court on the basis that they diluted the voting strength of Hispanic and black voters. The court drew interim maps amid an election scramble, and the Legislature in 2013 moved to adopt them.

Martinez Fischer argued that efforts to improve those maps for minority representation were rebuffed by the Republican majority.

“It was almost all upon deaf ears,” Martinez Fischer said.

All the plaintiffs’ briefs for the trial can be found here. The demonstration map mentioned in the story for the State House is H391, and C285 is for Congress, with the former drawn by MALC and the latter by MALC, LULAC, and the Perez plaintiffs. There more of these – go to http://gis1.tlc.state.tx.us/, choose a Shaded Plan, change the Category to All, and scroll down. The last maps listed for each type will be the ones being shown in the trial. Michael Li of the Brennan Center is live-tweeting the trial, so follow along with him for the play-by-play. I’ll do my best to keep up as well.

Court denies motion for appeals in redistricting case and sets trial date

We are moving along in this process after such a long long looooooooooooooooong wait to get here.

A three-judge panel on Monday denied Texas Attorney General Ken Paxton’s request to appeal a March ruling that said the Legislature intentionally discriminated against minority voters when it approved new congressional districts in 2011.

Texas needed the federal court’s permission to appeal because the ruling was not a final order in the case.

During a hearing Thursday in San Antonio, the judges voiced skepticism about letting a separate appeal move forward on the 2011 map while the panel began the final phase of the case — a claim that the current U.S. House and Texas House maps, adopted in 2013, also discriminated against African-American and Latino voters.

The court also rejected Paxton’s request to toss out claims that the 2013 maps were drawn to intentionally discriminate against minority voters in violation of the Constitution’s 14th Amendment.

Paxton had argued that the maps adopted by the Legislature in 2013 had originally been drawn by the three-judge court to cure voting rights problems found in the 2011 maps.

“The Legislature was entitled to presume that this court acted in good faith and without a racially discriminatory purpose,” Paxton argued.

But, the court ruled, the legal challenges focus on the intent of lawmakers, not judges, in adopting the U.S. House and Texas House district maps. Resolving those claims involves matters not appropriately decided on summary judgment, the order said.

See here and here for the background. The DMN adds on:

The court denied the state’s motions for summary judgments on its failure to create districts where there would be more Latino and black voting strength, and on assertions that the state used its “county line rule” to avoid doing so.

The county line rule stipulates that counties apportioned to districts must remain within that district. But plaintiffs argued that the state used the rule as a shield to avoid its obligation under the federal Voting Rights Act to create districts that would increase minority voting strength.

The judges denied a motion to resolve whether the state’s 2013 redrawing of House District 90 in Tarrant County violated the Voting Rights Act and the 14th Amendment. Plaintiffs argued that the district was drawn to dilute Latino voting strength, but the state said the district has a contingent of active Latino voters and elected one, U.S. Rep. Ramon Romero, to its congressional seat.

The panel still needs to resolve the state’s requests and could issue a trial date this week. An attorney for the Mexican American Legislative Caucus, one of the lead plaintiffs in the case, said last week he was confident there would be a summer trial. When asked Monday if that confidence remained, Jose Garza said: “You bet!”

Texas had also asked to appeal the court’s findings on the 2011 maps to the conservative-leaning 5th Circuit Court of Appeals, where presumably it would have a more favorable audience. Because the case is being handled by a special panel, the court denied that motion, and any appeals will go to the U.S. Supreme Court.

At the time those stories came out, the judges had not released an order specifying a trial date. Now they have.

With the 2018 election cycle looming, a federal judge panel has set July 10 as the start date for a trial over the state’s House and congressional political maps.

In an order filed Monday, the three judges presiding over the case scheduled the five-day trial following a pair of rulings that found Texas lawmakers intentionally discriminated against minority voters in initially drawing each map in 2011.

“The Court is aware of the condensed schedule that must be implemented in light of the 2018 election deadlines, and expects counsel and the parties to work diligently to meet the deadlines contained herein,” the panel wrote.

Rick Hasen has a copy of the scheduling order, which lays out all of the deadlines, the scope of evidence, how many maps each side can propose, and more. Any appeals will go straight to SCOTUS. Lord willing we’ll have ourselves some maps by the end of September or so. Michael Li has more.

Trial to be set to determine 2018 maps

Some questions answered, still more raised.

As the 2018 election cycle nears, it appears Texas and its legal foes are headed for a trial — yet again — over what the state’s House and congressional boundaries will look like, and it will likely come this summer.

“I think the trial is certain,” said Jose Garza, an attorney for the Mexican American Legislative Caucus, a lead plaintiff in the years-long challenge of the state’s political boundaries. “At the end of the day, we’re going to get new political maps, and the court’s going to draw them.”

His comments followed a lengthy and complicated hearing Thursday over the fate of the state’s 2013 House and congressional maps — a high-profile status conference that followed a pair of federal rulings that Texas lawmakers intentionally discriminated against minority voters in initially drawing each map in 2011.

Judge Orlando Garcia, one of the three judges presiding over the case here, said the panel would issue an order Monday “covering several matters that have been raised today.”

That order, Garza said, would likely include a target date for the trial, setting up the latest battle amid six years of wrangling — laced with confusion — over the state’s recently drawn maps. Attorneys on both sides Thursday suggested they could be ready in July or August.

Local elections administrators say they need clarity by October to meet deadlines for sending out voter registration cards, and December is the filing deadline for candidates.

See here for the previous update. The state argues that the 2013 map fixes all the ills of the 2011 map, while the plaintiffs point out that several of the districts in both current maps that were cited in the decisions are identical or nearly identical to the 2011 version. So off to trial we will go, and I would assume the order on Monday will spell out a schedule. In the meantime, the Republican strategy will be to stall and delay and hope to run out the clock, and not just for this cycle. We’ll see what the court says on Monday.

Big day for redistricting in court

Tomorrow the questions of what happens next in the redistricting lawsuits begin to get answered.

Will Texas soon see new political maps that are friendlier to Latino and black voters and, in turn, Democrats? If so, who would draw them: the scolded Republican-led Legislature or the courts themselves? Will the maps land ahead of the 2018 elections?

A three-judge panel based in San Antonio will start wading through such questions on Thursday as lawyers for each side of the redistricting dispute return to court for a high-profile status conference.

“This hearing is a very important event in the sequence of what’s going to happen,” said Jose Garza, an attorney for the Mexican American Legislative Caucus, a plaintiff in the case.

In a 2-1 March ruling, the San Antonio panel ruled that Texas lawmakers knowingly discriminated in drawing three of the state’s 36 congressional districts: CD-23, represented by Will Hurd, R-Helotes; CD-27, represented by Blake Farenthold, R-Corpus Christi; and CD-35, represented by Lloyd Doggett, D-Austin.

And last week the same judges found fault with the 2011 state House map, finding that lawmakers intentionally diluted the clout of minority voters statewide and in districts encompassing areas including El Paso, Bexar, Nueces, Harris, Dallas and Bell counties.

Each ruling matters mightily because, if they withstand appeals, they could ultimately land Texas — which has a well-documented history of racial discrimination in elections — back on a list of states needing outside approvalto change their election laws.

More immediate questions, however, surround what the rulings mean for the 2018 elections since new district lines could affect both voters and candidates. Already, one potential U.S. House candidate — former U.S. Rep. Pete Gallego — told The Texsas Tribune he would consider running again for Hurd’s CD-23 seat, but perhaps only under new boundaries.

[…]

Civil rights groups and other plaintiffs argue that 2011’s discrimination carried over to the maps currently in use.

Nina Perales, representing the Mexican American Legal Defense and Educational Fund in the lawsuit, suggests the case against the 2013 congressional maps is more straightforward partly because there are fewer districts in play and also because the court’s decision more clearly identified discrimination that carried over into the new maps. For instance, the boundaries of two of its districts — Farenthold’s 27th and Doggett’s 35th — are identical to those drawn in 2011.

“We get a better picture on the Congress decision about where the court thinks the map is still flawed,” Perales said. “We do not get a sense in the House opinion where the court thinks the 2013 map is flawed.”

See here and here for some background. There are a lot of questions for the court to address – Michael Li rounds up and summarizes the remaining disputes for the Congressional plan; there are no doubt at least as many issues still in contention for the State House plan – and not a lot of time to get something in place for the 2018 filing season, which begins in a bit more than six months. The plaintiffs had previously proposed a schedule that would have the state submit a remedial map by May 5, with a final decision in place by July 1. A similar schedule for the State House districts would mean a state-proposed remedial map by the beginning of June, with a final decision by early August. That actually gives the Legislature enough time to pass new maps if they want to, but with little room for delay. I can’t wait to see what the judges say.

Two more redistricting updates

From KUT, will we have a new Congressional map for next year?

[Gerry Hebert, one of the plaintiff attorneys], says he’s hopeful there won’t be yet another election with the old maps.

“The timing of the court’s decision is absolutely giving us an opportunity to get a new congressional redistricting plan for the 2018 election,” he says.

There are still quite a few steps between that decision and new maps, though. First up: a court hearing at the end of the month. Michael Li with the Brennan Center for Justice, another member of the plaintiffs’ legal team, says it should answer some of the “what happens next” kind of questions.

“We need to know when the parties are supposed to file briefs, when they are supposed to propose maps. Is the Legislature going to be given a chance? Is it not?” he says. “All of that is going to have to be decided.”

Li says at some point, both sides might also have to settle whether the 2013 interim map the state is currently using should be thrown out. Li, like Hebert, argues the interim map is not totally different than the 2011 map that the court struck down.

[…]

There has already been one unforeseen twist in the case since the ruling.

The state recently filed a motion asking the trial court to give it permission to appeal to the Fifth Circuit Court of Appeals, which is unusual. Typically such cases are appealed to the U.S. Supreme Court.

So, Li, Hebert and others will have to make the case for why the decision on the 2011 map should not be overturned.

See here, here, and here for some background. As noted, the status conference next Thursday the 27th is where these issues will begin to get hashed out. The timeline proposed by the plaintiffs would have a final map in place by July 1. Lots of things can and surely will happen between now and then, but that’s the goal and we should have some clue how attainable it will be next week.

As we have discussed before, all of this activity so far is around the Congressional map. We now have a decision in the case involving the original State House map, but will we get a new map drawn in time for 2018 in that case as well?

The U.S. Supreme Court is likely to hear the Texas redistricting case in which a three-judge federal panel ruled against the state in a 2-1 decision.

“The state of Texas purposely and intentionally, with full knowledge of what they were doing, discriminated against Latinos and African-American voters,” said Luis Vera, the national general counsel of the League of United Latin American Citizens, or LULAC, who has argued the case over the last several years.

[…]

Vera said it’s expected if Governor Greg Abbott calls a special legislative session, Texas lawmakers will have the first crack at fixing the 2011 map. If not, the federal judges will step in, Vera said.

Vera said there also could be a state and federal compromise.

Vera said the lines must be redrawn by 2018. He said even then, a new map is required after the U.S. Census in 2020.

I’m glad to hear that the plaintiffs’ attorneys believe there will be a new map in place for 2018, but I’m sure the state will argue that the 2013 map fixed all the problems and will do everything in their power to delay any further action. SCOTUS already has a different gerrymandering case on its spring docket, which may or may not have any overlapping effect on this. As always, we should know a lot more after that status call on the 27th.

Legislative maps found to have discriminatory intent

Wow.

Texas lawmakers intentionally diluted the political clout of minority voters in drawing the state’s House districts, a panel of federal judges ruled Thursday.

In a long-awaited ruling, the San Antonio-based judges found that lawmakers in 2011 either violated the U.S. Constitution or the Voting Rights Act by intentionally diluting the strength of minority voters statewide and specifically in a litany of House districts across Texas. Those districts encompass areas including El Paso, Bexar, Nueces, Harris, Dallas and Bell counties.

“The impact of the plan was certainly to reduce minority voting opportunity statewide, resulting in even less proportional representation for minority voters,” U.S. District Judges Orlando Garcia and Xavier Rodriguez wrote in a majority opinion, adding that map-drawers’ discussions “demonstrated a hostility” toward creating minority-controlled districts despite their massive population growth.

In some instances, the judges ruled, map-drawers’ use of race to configure some districts to comply with the Voting Rights Act instead “turned the VRA on its head.”

“Instead of using race to provide equal electoral opportunity, they intentionally used it to undermine Latino voting opportunity,” they added.

[…]

Thursday’s ruling hit in the final stretch of the 2017 legislative session, scheduled to wrap up at the end of May. But because the court did not immediately order that a new map be drawn, it is unclear whether lawmakers will be forced to take action before they leave Austin.

You can see the majority decision here and the findings of fact here. I haven’t read through them yet, and the early coverage is a bit sparse, but this is what I do know. This ruling is on H283, the map passed by the Legislature in 2011. It was never implemented because it was not precleared – H309 was the map used for the 2012 election. It was drawn by the court, but it was based on H283 as SCOTUS ruled that the interim map should defer to the legislative intent and not be based on the previously existing (per-cleared) map. In 2013, the Lege passed H358, which cleaned up a couple of issues that had been in contention, and that map was used for the 2014 and 2016 elections. This Texas Redistricting post zooms in on the places where the map was found to have had problems, and what is different between the 2011 and 2013 versions.

As with the Congressional case, there was a separate suit filed regarding H358, the 2013 map. That has not yet been adjudicated, and as we know the state is seeking to appeal the ruling on the 2011 Congressional map to the Fifth Circuit. There is a status call scheduled for April 27, which is to say next Thursday, at which a whole bunch of issues will be discussed, including the plaintiffs’ proposed calendar to get a new Congressional map in place for the 2018 primaries. It is not clear at this time what if any action will be taken for the legislative map, but I see no reason why something couldn’t be in place by, say September, which would be in plenty of time for candidate filings. Needless to say, that’s getting way ahead of things, but the goal needs to be to have a resolution for the next election. Anything else would be a mockery at this point. We’ll see how it goes. Statements from MALC and Rep. Garnet Coleman are beneath the fold, and Texas Redistricting, Rick Hasen, and the Lone Star Project have more.

UPDATE: Today’s Chron story has more.

(more…)

Voter ID law declared discriminatory

Again.

Still the only voter ID anyone should need

A federal judge has ruled — for the second time — that Texas lawmakers intentionally discriminated against Latino and black voters in passing a strict voter identification law in 2011.

U.S. District Judge Nelva Gonzales Ramos ruled Monday that Texas “has not met its burden” in proving that lawmakers passed the nation’s strictest photo ID law, know as Senate Bill 14, without knowingly targeting minority voters.

The 10-page ruling, if it withstands almost certain appeals, could ultimately put Texas back on the list of states needing federal approval before changing election laws. A 2013 Supreme Court ruling sprung Texas and other states with a history of discrimination from that list.

U.S. 5th Circuit Court of Appeals last July ruled that the Texas law disproportionally targeted minority voters who were less likely to have one of the seven forms of state-approved photo ID — a violation of the U.S. Voting Rights Act. And Texas conducted the 2016 General Elections under a court-ordered relaxation of the rules.

But the appeals court asked Ramos, of Corpus Christi, to reconsider her previous ruling that lawmakers discriminated on purpose, calling parts of her conclusion “infirm.”

After reweighing the evidence, she came to the same conclusion, according to Monday’s ruling. Her decision did not identify what some have called a smoking gun showing intent to discriminate, but it cited the state’s long history of discrimination; “virtually unprecedented radical departures from normal practices” in fast-tracking the 2011 bill through the Legislature; the legislation’s “unduly strict” terms; and lawmakers’ “shifting rationales” for passing a law that some said was needed to crack down on voter fraud.

“The Court holds that the evidence found ‘infirm’ did not tip the scales,” Ramos wrote. Civil rights groups and others suing the state offered evidence that “established a discriminatory purpose was at least one of the substantial or motivating factors behind passage of SB 14,” she added.

See here and here for the background. This will of course be appealed, and who knows what will happen with that. In the meantime, as was the case with Pasadena, the court will decide what if any Voting Rights Act remedies will need to be applied to fix the problem. For starters, the voter ID law will be thrown out in its entirety, just as it had been enjoined while Section 5 was in effect and preclearance was required. The big question will be whether preclearance will be reinstated, and if so for how long. I’m pretty sure that it will be, but we’ll have to wait to see about that. In the meantime, let’s celebrate the win as we wait for the appeal. Statements from MALC and Sen. Sylvia Garcia are beneath the fold, and the Chron, Rick Hasen, the Texas Election Law Blog, the Current, and the Lone Star Project have more.

(more…)

First shenanigan spotted

There will be more to come, I’m sure, but this will be happening today.

A Tuesday debate over the future of the state agency that regulates the oil and gas industry could instead become a showdown over immigration and where transgender Texans use the bathroom.

House Republicans will look to force a vote on the regulations proposed in the Senate’s controversial “bathroom bill,” which House Speaker Joe Straus has decried as “manufactured and unnecessary.” Tyler Republican Matt Schaefer has filed two amendments that would essentially require the Railroad Commission to enact some of the bathroom-related regulations proposed in Senate Bill 6 — a measure that would require people to use the bathrooms in public schools and government buildings that align with their “biological sex.”

A separate amendment by state Rep. Tony Tinderholt, R-Arlington, appears to target transgender people by requiring the commission to define women business owners — who can qualify for certain benefits in contracting — on the basis of the “physical condition of being female, as stated on a person’s birth certificate.”

Schaefer and Tinderholt are members of the socially conservative Texas Freedom Caucus, which is expected to repeatedly offer up portions of the “bathroom bill” as amendments to other measures. On just the second day of the legislative session, Schaefer, who leads the caucus, unsuccessfully attempted to amend a routine resolution with language requiring people in the Capitol to use bathrooms corresponding with their biological sex.

See here for the background. According to the Chron, the bill in question in HB1818. As RG Ratcliffe notes, the amendment will likely be killed by a point of order, but that won’t put an end to the effort. The rest of the session may well turn into an exercise in swatting flies, as I doubt these guys will be deterred by reason, threats, or humiliating defeat. Buckle up, it’s going to be a bumpy ride.

There’s also this:

On the immigration front, an amendment by state Rep. Rafael Anchia, D-Dallas, would require that a company regulated by or contracting with the Texas Railroad Commission certify that it doesn’t hire undocumented workers and charged with perjury if found to have lied. The amendment would also require the commission to alert Immigration and Customs Enforcement and the local district attorney if a company CEO or supervisor is in violation of the provision.

Anchia, the chairman of the Mexican American Legislative Caucus, said he has no desire to expand state-based immigration enforcement, and doesn’t expect his fellow Democrats to vote for the amendment. It’s symbolic: He wants businesses to be more vocal against what he called extreme immigration proposals the Legislature is considering this session, specifically Senate Bill 4. That measure, passed by the Senate last month and now pending in a House committee, would ban “sanctuary” jurisdictions in Texas and vastly expand the immigration enforcement powers of local police.

“For Republicans to only demonize immigrants but not talk about the insatiable appetite on the part of businesses for immigrant workers is hypocrisy at its best,” he said.

I respect Rep. Anchia and I get what he’s trying to accomplish here. I don’t know if it will work – if nothing else, I’m sure there’s a point of order with this amendment’s name on it as well – but it’s about making a point. We’ll see how it goes.

UPDATE: Schaefer’s shenanigan gets averted, while Anchia’s amendment gets adopted.

Motion filed to block current Congressional map

From the Lone Star Project.

Moments ago the Plaintiffs in the ongoing Texas congressional redistricting case filed a joint motion asking the San Antonio Federal District Court for an injunction to block the use of the current congressional map during the 2018 mid-term elections.  The motion also suggests a schedule to adopt a new map for use in the 2018 elections.

On March 10, the three-judge Federal District Court in San Antonio with jurisdiction in the Texas case ruled that the congressional plan adopted by Texas Republican leaders in 2011 was intentionally discriminatory in violation the U.S. Constitution and the Voting Rights Act.  The Court found violations in Corpus Christi, San Antonio, Austin and the DFW area.

The Plaintiff’s motion explains that the current congressional map retains many of the violations identified by the Court in the 2011 map; therefore, it should not be used in the 2018 election.  Plaintiffs wrote:

“Delaying entry of an injunction following this Court’s finding that the 2011 congressional plan was illegal and unconstitutional, and that elements of these violations persist in C235, would unjustifiably risk forcing Plaintiffs, and, indeed, millions of Texans to elect members of Congress under a legally invalid plan.”

The motion also lays out a timeline to configure a remedial map to use in the 2018 elections.  Texas Republican leaders are given until May 5, 2017 to submit a remedial plan to the Court. Plaintiffs will be required to respond to the state’s map by May 12, 2017.  An order confirming a final remedial map would be issued by July 1, 2017.

Lone Star Project Director Matt Angle released the following statement:
“Every Texan is harmed when statewide leaders engage in intentional discrimination, and no Texan should be subject to the results of an election conducted under an intentionally discriminatory congressional plan.

“The federal court in San Antonio has made clear time and again that they will protect the rights of Texans, and the plaintiffs have laid out a common-sense process to put a legal map in place.”

See here and here for the background. We’re going to need to get something going if there’s to be a chance to have a proper map in place for 2018. (And remember, this is just the Congressional map. We’re still waiting for a ruling on the legislative map, which may require the same process.) As the Trib notes, the state will oppose this motion, so that may draw things out further. We’ll see how it goes.

Court rules several Congressional districts were illegally drawn

Bam!

Some of Texas’ 36 congressional districts violate either the U.S. Constitution or the federal Voting Rights Act, a panel of federal judges ruled Friday.

In a long-delayed ruling, the judges ruled 2-1 that the Texas Legislature must redraw the political maps it most recently used for the 2016 elections.

Specifically, they pointed to Congressional District 23, which stretches from San Antonio to El Paso, takes in most of the Texas-Mexico border and is represented by Republican Will Hurd of Helotes; Congressional District 27, represented by Blake Farenthold, R-Corpus Christi; and Congressional District 35, a Central Texas district represented by Lloyd Doggett, D-Austin.

The 166-page ruling by the San Antonio-based district was the latest in a complicated case that dates back to 2011, and comes just two election cycles away from the next U.S. Census — when the state would draw a new map under normal circumstances.

In 2013, the district court found evidence that lawmakers intentionally discriminated when redrawing the boundaries. But the U.S. Supreme Court soon complicated the case when it struck down a key section of the Voting Rights Act that had forced Texas to seek permission before making changes to election procedures.

But that didn’t end the legal battle. The U.S. Department of Justice and other plaintiffs pressed on in the case, and Texas held elections using interim maps drawn by judges.

In its decision Friday, the court still found that “mapdrawers acted with an impermissible intent to dilute minority voting strength or otherwise violated the Fourteenth Amendment” of the Constitution.

“The Court finds that this evidence persuasively demonstrates that mapdrawers intentionally packed [concentrated certain populations] and cracked [diluted certain populations] on the basis of race (using race as a proxy for voting behavior) with the intent to dilute minority voting strength,” U.S. District Judges Orlando Garcia and Xavier Rodriguez wrote in the majority opinion.

In his dissenting opinion, Judge Jerry Smith of the U.S. Fifth Circuit Court of Appeals called the case moot under previous rulings, and he  sharply criticized the Justice Department.

Tale about a Friday news dump – I literally saw this on Facebook just before going to bed Friday night. We have been waiting forever for a ruling in this case. Note that this is only half of what we have been waiting for – there is still a ruling to come on the State House map, too. But for now, the status of the 2018 elections has changed. The Lone Star Project adds on.

The court singled out violations in the Corpus Christi region involving District 27 (Farenthold – R), in the South Texas/Border region involving District 23 (Hurd – R) and in the Austin to San Antonio region involving District 35 (Doggett – D). The Court also ruled that minority voters in the Dallas/Fort Worth area were illegally cracked under the 2011 map.

While it is too early to know exactly what changes will be made, it is fair to read the opinion as requiring that Hispanic voters put into Anglo-controlled CD27 in the current map must be returned to an effective Hispanic district, that Hispanic voting strength weakened in District 23 must be restored, and that District 35 in the Austin to San Antonio corridor will have to be modified to reunite minority voters in a far less fragmented district centered in Austin.

In Dallas/Fort Worth, the creation of District 33 (Veasey – D) in the current map may have resolved some of the blatant violations under the 2011 map; however, arguments will be made to repair remaining cracked Hispanic and African American neighborhoods in Dallas and Tarrant counties.

The ruling is a major victory for minority citizens and their advocates before the court. Minority advocacy groups including LULAC, NAACP, the Mexican American Legislative Caucus and citizen plaintiff groups led by Congressman Marc Veasey and State Representative Eddie Rodriguez had the courage to challenge the GOP map and the tenacity to stay with a long and difficult court battle. Their efforts have defended and protected the voting rights of thousands of otherwise disenfranchised Texas citizens. The Lone Star Project has been engaged in the Texas redistricting battle from the onset and will continue to provide support to key plaintiffs in this important effort.

We should expect the San Antonio Court to schedule a hearing soon to discuss the additional deliberations needed to fully resolve the case and to reach a final remedy. It is also likely that Governor Greg Abbott will refuse give up Texas GOP efforts to protect a discriminatory redistricting process and will direct state attorneys to explore appeal options.

I’d say it’s not “likely” that Abbott appeals, it’s a 100% gold-plated certainty. Rick Hasen quotes from the majority decision to explain what that “minority voters in the Dallas/Fort Worth area were illegally cracked under the 2011 map” means:

Plaintiffs have established a § 2 violation, both in terms of intent and effect, in South/West Texas. Plaintiffs have shown that seven compact majority-HCVAP districts could and should be drawn there that would substantially address the § 2 rights of Hispanic voters in South/West Texas, including Nueces County. Defendants’ decision to place Nueces County Hispanic voters in an Anglo district had the effect and was intended to dilute their opportunity to elect their candidate of choice.

Meanwhile, race predominated in the drawing of CD35, and Defendants’ decision to place majority- in Travis County was not to comply with the VRA but to minimize the number of Democrat districts in the plan overall. Plaintiffs have established a Shaw-type equal protection violation with regard to CD35. Plaintiffs also establish a Shaw-type equal protection violation with regard to CD23. In addition, Defendants’ manipulation of Latino voter turnout and cohesion in CD23 denied Latino voters equal opportunity and had the intent and effect of diluting Latino voter opportunity. Nueces County Hispanics and Hispanic voters in CD23 have proved their § 2 results and intentional vote dilution claims. The configurations of CD23, CD27, and CD35 in Plan C185 are therefore invalid.

Plaintiffs fail to proffer a demonstration plan accompanied by sufficient evidence to demonstrate that additional compact minority districts could be drawn in DFW or Houston, taking into account traditional redistricting principles and communities of interest. However, they are not precluded from raising § 2 results claims with regard to Plan C235 during the trial on that plan. Plaintiffs have proved intentional vote dilution through packing and cracking in DFW and also establish a Shaw-type racial gerrymandering claim with regard to CD26, but not CD6. However, they fail to prove intentional vote dilution in the Houston area, and fail to prove that mapdrawers acted with racially discriminatory purpose when drawing the districts represented by the African-American Congresspersons.

Well, okay, we’ll need to see a proposed remedy to understand what that means, but the bottom line is that four districts could be directly affected – CDs 23, 26, 27, and 35 – with ancillary changes to some number of adjoining districts. In a subsequent post, Hasen provides some extra guidance to this decision.

2. Bail in. It probably is not obvious to those not steeped in this area, but the big fight here is not about these particular districts (although that is important) but whether Texas gets put back under Section 5 preclearance for up to 10 years. That is possible under Section 3, the “bail-in” provision of the VRA which gives a court the ability to impose preclearance after a finding of intentional race discrimination. That finding is here, and the case is still going to go forward on that issue (as well as some other issues). Further, the finding of intentional race discrimination will almost certainly be relied on if, as I expect, the trial court in the Texas voter id case, finds intentional racial discrimination and orders bail in. So this is huge. (The caveat is how a Trump DOJ would enforce such rights if Trump is still in office. I’m not optimistic, and there’s no appeal of a DOJ decision to grant preclearance. Preclearance of post-2020 redistricting will depend on who wins the 2020 presidential elections.)

3. Race or party. I have been writing a lot about the race or party question: what to do about claims of racial discrimination when, as in the American South, race and party are so closely correlated. The majority approach, is subtle and sophisticated on this question, and seems to fall mostly on the party as a proxy for race (“party as race”) approach to the question. When you make it harder for minority voters to exercise political power for your own political reasons (such as protecting incumbents or your party), this counts as intentional race discrimination. Judge Smith takes the “race or party” approach, and he believes he knows what’s “really” going on: this is all about party, rather than race. It is either blind to the realities or ignoring the fact that these two criteria are really inseparable in Texas.

4. The remedy and what comes next. The trial court does not order anything to happen right now. The parties will fight about the remedy. Likely Texas will get a chance to redraw districts with some deference to Texas as to that which is not a violation. The parties will fight over the plans. And this will get dragged out. But presumably there will be new maps in place for the 2018 congressional elections, unless the Supreme Court intervenes. I fully expect Texas to try to get the Supreme Court to intervene in the interim. At most these lines would last 2 elections, and then we are back to a new round of redistricting. And this shows what is lost by preclearance. We’ve now had three elections that arguably should never have taken place under these lines.

There’s more, so read the rest. If this case proceeds from here as the post-2003 redistricting litigation did, we will get a bunch of November of 2018 special elections in these Congressional districts, with the possibility of special elections in some number of redrawn State House districts as well. If that doesn’t sound like your idea of fun, then you’re reading the wrong blog. Daily Kos and the Chron have more.

Voter ID 2.0

Well, this is interesting.

Still the only voter ID anyone should need

Top Texas Republicans unveiled legislation Tuesday that would overhaul the state’s voter identification rules, an effort to comply with court rulings that have found that the current law discriminates against minority groups.

Filed by Sen. Joan Huffman, Senate Bill 5 would add options for Texans who say they cannot “reasonably” obtain one of seven forms of ID currently required at the polls. It would also create harsh criminal penalties for those who falsely claim they need to choose from the expanded list of options.

Lt. Gov. Dan Patrick has granted the bill “priority” status, carving it a faster route through the Legislature. Nineteen other senators have signed onto the bill, and Texas Attorney General Ken Paxton — who is still defending the current ID law in court — applauded the legislation Tuesday.

In a statement, Paxton said the proposal would both ensure the “the integrity of the voting process” and comply with court rulings that have found fault with the current law, considered the nation’s strictest.

Chad Dunn, a Houston-based attorney for groups suing the state over that law, called the legislation “a step in the right direction.”

“The state is acknowledging the federal court’s conclusion that the (current) law is discriminatory,” he said Tuesday.

I’ll reserve judgment for now, but this seems like a sign that the Republicans are not terribly optimistic about their chances with the ongoing lawsuit, with the question in district court about discriminatory intent. Actually, we don’t have to suppose, because we have this.

The U.S. Justice Department joined Texas’ attorney general Wednesday in asking a federal court to delay a hearing on the state’s voter ID law, the latest signal that the federal government might drop its opposition to the law now that Donald Trump is president.

In the joint filing, the Justice Department and Texas Attorney General Ken Paxton asked to delay next Tuesday’s hearing until summer because the Texas Legislature is considering changes to the existing law, which a federal court has found to be discriminatory. Barack Obama’s Justice Department had joined the lawsuit contesting it.

[…]

In the filing, the Justice Department and Texas asked for the hearing to be pushed back until after June 18, the last day Gov. Greg Abbott has to sign or veto legislation.

“If new Texas state voter identification legislation is enacted into law, it will significantly affect the remainder of this litigation,” Texas and the Justice Department argue.

Just hours after Trump was sworn in as president, the Justice Department asked for a January hearing to be delayed to February, saying they needed more time to brief new leadership. Lawyers in the case say it’s still too early to know for sure if Trump’s Justice Department change positions in the case.

In August, Ramos denied a request from Texas to delay hearings in the case until after the legislative session wraps up in June.

“The question to be determined at the hearing is whether there was intent to discriminate during the legislative session in 2011,” said Houston attorney Chad Dunn, who is part of a legal team representing Democrats and minority rights groups challenging the law. “Whatever happens with this bill doesn’t address that question.”

See here and here for the background. I will just point out that the GOP could have passed SB5 back in 2011 and saved themselves a lot of trouble. It would still be a bad idea and a non-solution in search of a non-existent problem, but it would have been harder to beat in court. But here we are, and in this environment that counts for progress. A statement from Rep. Eddie Rodriguez is beneath the fold, and the Star-Telegram has more.

(more…)

Interview with Jose Garza

Still the only voter ID anyone should need

So it’s been a busy couple of weeks for the voter ID litigation. There was the motion by the Justice Department to delay the hearing on whether the law was passed with discriminatory intent, which everyone expects is a prelude to them switching sides in the case. Then there was the decision by the Supreme Court to not hear an appeal of the original ruling that found a discriminatory effect of the law, given with a promise by Chief Justice Roberts that they will be back later. With so much going on, I wanted to make sure I understood it all, and to that end I have for you an interview with Jose Garza, who serves as counsel for the Mexican American Legislative Caucus, one of the plaintiffs in this suit. We talked about both of these events in the case and what they may mean, and a few other items besides. Here’s our conversation:

I feel like I have a better handle on what’s happening, and I hope you feel the same. Let me know what you think.

Voter ID changes approved

We’re all set.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas’ voter ID law, cast as the strictest in the nation, will be substantially watered down during November’s election after a federal judge Wednesday approved a deal that allows those lacking required identification to cast a ballot by signing an affidavit.

U.S. District Judge Nelva Gonzales Ramos agreed to terms worked out between Texas and several minority groups, which requires the state to spend $2.5 million on a voter education campaign. Ramos also ordered that Texas allow the groups suing have input on the state’s outreach efforts.

[…]

Under the approved deal, acceptable identifications were expanded to include voter registration cards, birth certificates, utility bills, paycheck stubs and government documents with the voter’s name and address.

Along with one of the alternate IDs, voters will also have to sign an affidavit and check a box saying why they were unable to obtain one of the identifications required under the law. The deal also provides safeguards to prevent poll workers and election officials from questioning Texans lacking identification at the ballot box.

Democrats said the Republican-controlled Legislature could have provided protections for voters lacking necessary identification to still be allowed to cast ballots but opted instead to pass a bill that has been mired in litigation for years.

“This fix will provide welcome relief to the 600,000 Texas voters who have been disenfranchised by the state’s discriminatory voter ID law,” state Rep. Trey Martinez Fischer, a San Antonio Democrat and the chairman of the Mexican-American Legislative Caucus, which is a plaintiff in the case, said in a statement. “Unfortunately, we need not have waited three years or spent millions of taxpayer dollars to get to this point.”

See here, here, and here for the background, and here for the full statement from MALC. The item about the plaintiffs having a say on how the outreach efforts go is a win as well, since they were skeptical about it to begin with.

Lawyers for Texas have disclosed that Burson-Marsteller, a public relations giant and global strategic communications firm with an Austin office, is under contract with the state to develop voter outreach efforts for the current year.

That includes a roughly $2.5 million plan Texas agreed to put in place after a federal appeals court last month found its voter ID measure discriminates against minorities.

Burson-Marsteller is no stranger to helping Texas with voter education plans, contracting with the state as far back as 2006. But Texas’ outreach efforts focused on the controversial photo ID law have been cast as lackluster by minority groups and federal courts, including a plan designed for the 2014 elections by Burson-Marsteller in which the state spent $2 million on an education campaign.

In a court filing last week, Texas said Burson-Marsteller and a subcontractor, Austin-based TKO Advertising, have already consulted with the state to design a “multi-faceted strategy to reach and educate voters” about changes to the voter ID law for the upcoming election. Texas says that plan is ready to be executed.

However, lawyers suing the state said they remain concerned about Texas’ willingness to reach out to voters and to train poll workers — and Burson-Marsteller’s involvement doesn’t help that perception.

“It gives us less confidence,” said Jose Garza, a lawyer for the Mexican-American Legislative Caucus, which is a plaintiff in the case. “The state’s historical track record is not a very good one on this issue.”

As that second story notes, the oversight item was one on which the two sides did not agree. It’s not hard to understand why the plaintiffs had their doubts, given the association with previous “outreach” efforts. I’m hopeful this will ensure things go as smoothly as can be expected.

That said, this still isn’t over.

Texas Attorney General Ken Paxton, a staunch supporter of the voter ID law, signaled that he won’t give up the case any time soon. The legal battle over what is said to be the nation’s strictest voter ID law has already cost state taxpayers more than $3.5 million.

“This case is not over,” Paxton’s spokesman, Marc Rylander, said in a statement. “Given the time constraints of the November elections and the direction of the Fifth Circuit, today’s order by the district court is an interim remedy that preserves the crucial aspects of the Voter ID law for this November election, while we continue evaluating all options moving forward, including an appeal of the Fifth Circuit’s decision to the U.S. Supreme Court.”

Seems highly unlikely to me that there are five votes on SCOTUS to overturn the Fifth Circuit decision, but as we know it’s not the winning or losing that motivates Paxton, it’s the rallying of the troops. A glorious defeat works just fine for his purposes. The Lege will take another crack at this next year, though it remains to be seen what that might amount to. I feel pretty confident saying what we have now is what we’ll have in November. Beyond that, we’ll see. The Texas Civil Rights Project has more.

State settles birth certificate lawsuit

Good.

After undergoing mediation, the state of Texas has reached an agreement with undocumented families in a lawsuit over its denial to issue birth certificates to children born in the U.S. to undocumented immigrants.

The state will clarify and expand the types of secondary forms undocumented immigrants can use to prove their identity, according to attorneys representing the group of undocumented parents and their U.S-born children who filed a lawsuit against the Texas Department of State Health Services.

Previously, immigrants in Texas could request birth certificates for their children if they had two secondary forms of ID, including Mexican voter registration cards and foreign IDs with a photo.

In the agreement, the state said it would accept voter ID cards received by undocumented immigrants in Texas by mail under recent changes to Mexican law, the attorneys said. Until earlier this year, the Mexican voter registration cards could only be obtained in Mexico.

The state also agreed to accept certain documents Central American parents can obtain from their consulates in the U.S. as secondary forms of ID if they are signed and stamped by consular officials. Under the agreement, the list of acceptable secondary documents was also expanded to include other supporting documents, such as copies of utility bills, paycheck stubs and letters relating to public assistance benefits, according to the families’ lawyers.

“We feel confident that undocumented parents with children born here will be able to access their children’s birth certificates,” said Marinda van Dalen, a staff attorney with Texas Rio Grande Legal Aid.

See here and here for the background. The plaintiffs’ argument was that the state had no basis for changing its rules for what ID it would and would not accept, and the state’s defense to that argument didn’t resonate with the judge, so given all that a settlement seems like the best outcome all around. With the exception of the immigration executive order lawsuit, it hasn’t exactly been a great month in the courts for the state of Texas, has it? A statement from the Senate Hispanic Caucus is here, and the NYT and the Observer have more.

SCOTUS upholds “one person, one vote”

Good news.

In a unanimous decision released Monday, the U.S. Supreme Court ruled to uphold Texas’ current system for drawing legislative districts so that they are roughly equal in population.

The Supreme Court’s ruling is a victory for legislators — mostly Democrats — who represent districts with significant populations of people who are not eligible to vote: primarily children and non-U.S. citizens.

[…]

The case brought together dozens of state legislators who signed on to briefs arguing in Texas’ favor. Members of the House of Representatives’ Mexican American Legislative Caucus and the Texas Senate Hispanic Caucus argued that the legal challenge represented a direct attack on their constituents, many of whom are ineligible to vote because they do not hold citizenship status. In order to accommodate thousands of additional eligible voters necessary to achieve district parity under Evenwel and Pfenninger’s plan, their districts would soar in size so much that their ability to represent their constituents effectively would be diminished, they said.

The Supreme Court acknowledged that argument in the majority ruling.

“As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote,” Ginsburg wrote. “Nonvoters have an important stake in many policy debates — children, their parents, even their grandparents, for example, have a stake in a strong public education — and in receiving constituent services, such as help navigating public-benefits bureaucracies.”

“By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation,” the ruling concluded.

See here, here, and here for the background. ThinkProgress celebrates the win, but notes that the battle has not been fully settled.

Yet, while [Edward Blum, the conservative activist behind this lawsuit] did not prevail today, some ominous signs for Latino communities in states like Texas can be found in Ginsburg’s opinion. Ginsburg repeatedly uses language suggesting that states have some discretion to decide how to divvy up representation within the state. She writes that “it is plainly permissible” to divide up districts as Texas has done, and that “states and localities may comply with the one-person, one-vote principle by designing districts with equal total populations.”

That leaves an open question — whether states also may comply with one person/one vote by designing districts in the way that Blum would prefer. Ginsburg’s opinion does not answer that question. Nor does a separate opinion by Justice Samuel Alito, which states that “whether a State is permitted to use some measure other than total population is an important and sensitive question that we can consider if and when we have before us a state districting plan that, unlike the current Texas plan, uses something other than total population as the basis for equalizing the size of districts.”

Nevertheless, it is reasonably likely that Texas, or some other conservative state, will test this proposition in short order. Why wouldn’t the sort of lawmakers who embrace tactics like partisan gerrymandering and voter ID laws try to shift representation towards more conservative white communities if they can get away with it?

The practical effect of Evenwel, in other words, may simply be to shift Blum’s advocacy away from the Supreme Court and towards state legislatures.

Rick Hasen, however, is not very concerned about that.

Justice Ginsburg’s opinion holds that districting using total population was consistent with constitutional history, the Court’s own decisions, and longstanding practice. A long section of Justice Ginsburg’s opinion recounts constitutional history, and relies on the fact that for purposes of apportioning Congressional seats among states, total population, not total voters, must be used. Plaintiffs’ argument in Evenwel was inconsistent with this practice. As to the Court’s own precedents, Justice Ginsburg acknowledged language supporting both total voters and total population as possible bases, but Court’s practice has been to look at total population in its cases. Further, that is the practice that states uniformly use, despite the occasional case such as Burns v. Richardson, allowing Hawaii to use a registered voter level.

Finally, Justice Ginsburg gives a sound policy reason for a total population rule. In key language, she writes that “Nonvoters have an important stake in many policy debates—children,, their parents, even their grandparents, for example, have a stake in a strong public-education system—and in receiving constituent services, such as help navigating public-benefits bureaucracies. By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.” A footnote following this states that even though constituents “have no constitutional right to equal access to the their elected representatives,” a state “certainly has an interest in taking reasonable, nondiscriminatory steps to facilitate access for all its residents.”

Perhaps the most important aspect of Justice Ginsburg’s opinion, and especially notable because it attracted the votes of not just the liberals but also Chief Justice Roberts and Justice Kennedy, is the Court’s refusal to give Texas the green light to use total voters if it wants in the next round of redistricting. The Court simply put the issue off for another day. It is hard to stress enough what a victory this is for liberal supporters of voting rights. Many of us thought Burns already gave Texas this power. The fact that the Court leaves that issue open will serve as a deterrent for states like Texas to try to use total voters in the next round of redistricting, because it will guarantee major litigation on the question.

SCOTUSBlog sums up:

The ruling’s bottom line was unanimous, but the main opinion bore many signs that its warm embrace of the theory of equality of representation had to be qualified by leaving the states with at least the appearance of the power of choice, to hold together six solid votes.

Two of the eight Justices were clearly not satisfied with the rhetoric and some of the implications of Justice Ginsburg’s opinion, and only joined in the outcome. Those were Justices Samuel A. Alito, Jr., and Clarence Thomas, each of whom wrote separately. Thomas also joined most of Alito’s opinion.

Had Justice Ginsburg not held five colleagues in support of what her opinion actually said in the end, two — perhaps Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy — might have abandoned the common result. The result then might have been that the Court would have split four to four, settling nothing and releasing no opinion at all while leaving intact a three-judge federal district court’s ruling that Texas had the authority to base its state legislative seats on a division of the total population of Texas.

Texas actually had wanted the Court to allow it to use a total population metric, but to go further and give the states explicit constitutional permission to map out districts with equal populations of voters. The Obama administration also had wanted the Court to rule that the Constitution actually required total population as the starting point for redistricting. Neither persuaded the Court to go take those further steps.

I’m sure Blum and his ilk will never go away, but at least as far as this goes, they would appear to have a steep hill to climb to win in a subsequent attempt to do something like this. For that we can be glad. A statement from Sen. Sylvia Garcia, whose Senate district would have been greatly affected by this lawsuit, is here, and a statement from the Mexican American Legislative Caucus is here. Daily Kos, the Brennan Center, Trail Blazers, Kevin Drum, TPM, the Lone Star Project, ThinkProgress, the Chron, and the Current have more.

UPDATE: More from The Nation and The Atlantic.

Can SCOTUS please intervene in the voter ID case?

The plaintiffs would like to know.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Civil rights groups challenging Texas’ voter identification law are asking the U.S. Supreme Court to block the measure from being used during the 2016 general election.

[…]

The civil rights groups filed a motion Friday with the Supreme Court asking it to vacate a Fifth Circuit ruling that has allowed the voter ID law to continue being implemented unchanged and to reinstate an injunction against the measure. The groups also asked the high court to consider giving the federal court in Corpus Christi limited jurisdiction over the case to issue a new injunction.

Requiring one of seven forms of valid ID, Texas’ voter ID law is considered one of the most stringent in the country. The Legislature passed the measure in 2011, and it has been the subject of litigation ever since.

Following the October 2014 ruling by the federal court in Corpus Christi, the Fifth Circuit allowed the law to stay in effect while the state appealed to avoid disrupting the elections that took place weeks after.

But the civil rights groups argue the Fifth Circuit’s stay has now stretched nearly 18 months and has “injured Texas voters in two more statewide election cycles in 2015 and 2016, and, unless vacated, will very likely cause further injury by allowing enforcement of an invalid state law again during the 2016 Texas general elections.”

Lawyers for the groups asked the Fifth Circuit last week to reverse its decision allowing the law to stay in effect, but the court said it would not consider that motion until it rehears the case in the last week of May.

The civil rights groups say the Fifth Circuit’s schedule is likely to prevent them from getting a ruling in time for the 2016 elections. Texas starts its election preparations in June, just days after the full appeals court will revisit the case.

See here for the background, and here for a copy of the application to vacate the Fifth Circuit ruling. Bear in mind that the federal district court judge put a stay on the law in her 2014 ruling, but on appeal the Fifth Circuit lifted the stay, with the Supreme Court concurring, on the grounds that it was too close to the election to change all the procedures that had been put in place to inform people about voter ID. Whatever you think of that ruling, there’s plenty of time to change things now, unless of course the Fifth Circuit runs out the clock, which some people think was their intent. I presume a 4-4 ruling means that the stay will not be reinstated, so the plaintiffs will need to hope for the good Anthony Kennedy to show up. We’ll see how it goes. SCOTUSBlog, The Hill, and NBC News have more.

Oral arguments in birth certificate lawsuit

Here we go.

U.S. District Judge Robert Pitman heard oral arguments in a lawsuit filed by a group of undocumented parents and their U.S.-citizen children against the state Department of State Health Services, which has effectively blocked the children from obtaining birth certificates.

The families allege that the department has violated the children’s constitutional rights by ordering local county registrars to stop recognizing Mexican consular IDs — known as a matrícula consular — and foreign passports without valid visas, as proof of identification that the parents may use to obtain the vital records. The state argues the documents are susceptible to fraud.

“Is this a solution in search of a problem?” Pitman asked assistant attorney general Thomas Albright, representing the agency, health Commissioner Kirk Cole and State Registrar Geraldine Harris. “What makes this burden necessary?”

Pitman’s remarks came after he told the state’s attorneys he would not allow them to debate the importance of birth certificates, a document he said was “the primary evidence of U.S. citizenship.”

The hearing came after the families asked for an emergency injunction ordering the health department to identify two acceptable forms of identification parents can use to obtain birth certificates.

Attorney Jennifer Harbury, representing the families, reiterated her belief that Texas changed its policies without warning in reaction to the national debate over illegal immigration that reached a fever pitch in 2011. After that, she said, Texas became the only state in the country to prevent undocumented immigrants from getting birth certificates.

But Albright said the families haven’t proven their case enough for Pitman to grant the emergency order, and instead said the issue should play out through a regular trial.

“There is no burden on us to say ‘We’re great. Our rule is perfect,’” he told Pitman. “Today is just one step in what is a longer process. I don’t think they’ve argued the proof that you need.”

Albright also focused on the Mexican matrícula, conceding it has been made more secure and tamper proof but saying it is still susceptible to fraud.

Harbury said the families would be amenable to a ruling that excluded that document from a list of approved items. Her argument, she said, is that nothing else is currently acceptable.

“Forty-nine other states accept another form [of ID],” she said.

Though he seemed to question more than one of the state’s claims, Pitman also appeared hesitant to make a decision without more information. It’s unclear when he will rule.

See here, here, here, and here for the background. If you get the impression that the state didn’t have the strongest argument for its defense, you wouldn’t be alone.

Judge Robert Pittman did not offer many clues about his feelings on the case during the three-hour hearing, but he did grill Albright about the extent of birth certificate fraud, asking several times whether the new state policy was a “solution in search of a problem.”

“If you’re asking if there’s some statistical analysis … I don’t have that,” Albright conceded.

He was quick to add, however: “That’s not my burden.”

Still, the judge did not grant the emergency order, and it is not clear when he will rule. So until then, things will continue to be as they were. The Observer has more.

Lawsuit filed over state refusal to issue birth certificates

I’m sure this won’t be contentious at all.

For nearly 150 years, the United States, under the 14th Amendment, has recognized people born here as citizens, regardless of whether their parents were citizens.

But Texas has other plans. In the last year, the state has refused to issue birth certificates to children who were born in Texas to undocumented parents. In May, four women filed a civil rights lawsuit against the Texas Department of State Health Services alleging constitutional discrimination and interference in the federal government’s authority over immigration.

Jennifer Harbury, a lawyer with Texas RioGrande Legal Aid, who is representing the women, said the deluge of birth certificate refusals began last winter. “I’ve never seen such a large number of women with this problem,” she says. “In the past someone might be turned away, but it was always resolved. This is something altogether new.”

According to the lawsuit, the women who requested birth certificates for their children at the state’s vital statistics offices in Cameron and Hidalgo counties were turned away because of insufficient proof of their identities. State law allows the use of a foreign ID if the mother lacks a Texas driver’s license or a U.S. passport.

But employees at the offices, which are run by the Texas Department of State Health Services, told the women they would no longer accept either the matricula consular, which is a photo ID issued by the Mexican Consulate to Mexican nationals living in the U.S., or a foreign passport without a current U.S. visa. Undocumented Central American women are also being turned away because they only have a passport without a U.S. visa. “They are locking out a huge chunk of the undocumented immigrant community,” says Harbury.

[…]

James Harrington, an attorney with the Texas Civil Rights Project, is also representing the undocumented families. The legal team is seeking a court order to reinstate the use of the matricula consular and foreign passports as valid proof of identity for undocumented mothers.

“Even in the darkest hours of Texas’ history of discrimination, officials never denied birth certificates to Hispanic children of immigrants,” said Harrington in a written statement. “Everyone born in the United States is entitled to the full rights of citizenship.”

Here’s the Express-News story from May that the Observer post references; it has some more detail so read it as well. Just as a reminder, the 14th Amendment grants birthright citizenship, so I have no idea on what ground the Department of State Health Services thinks it has to stand. Here’s a bit from a press release from MALC that expands on that:

Recently, several parents were denied birth certificates for their U.S. born children by employees at offices administered by the Department of State Health Services, after administrators declined to accept their foreign government forms of identification. This is a major departure from prior practice, as parents had been able to obtain a copy of their child’s birth certificate by providing their passport or a consular ID from their country of national origin in lieu of a US-issued ID.

“The legal standing for this prerequisite is questionable. No section under Texas’s Health and Safety Code mandates that the Department require verification of immigrant status or national original before the issuance of a birth certificate to the parents of an American-born child. This practice also runs counter to the 14th Amendment of the United States Constitution, which grants citizenship to all children born in the United States, regardless of whether their parents are citizens.

The full statement is here. I’d hope this would spur a quick reversal, but I know better than to expect it. We’ll see what the courts have to say. TPM has more.

Interview with Trey Martinez-Fischer

Rep. Trey Martinez-Fischer

Rep. Trey Martinez-Fischer

Continuing with my sprint-to-the-finish-line week of special election interviews, today we have a conversation with State Rep. Trey Martinez-Fischer, one of five candidates vying to succeed Sen. Leticia Van de Putte in SD26, the higher profile and much more expensive race of the three. An attorney and native of San Antonio, Rep. Martinez-Fischer – better known as TMF – has represented HD116 for seven terms. The current chair of the Mexican American Legislative Caucus (MALC), TMF has been one of the leaders in the Democratic caucus on some highly charged issues such as redistricting and voting rights. He has twice been recognized by Texas Monthly for his service in the Legislator, as a Ten Best winner in 2013 and the “Bull of the Brazos” following the bruising 2011 session. Here’s what we talked about:

I should have interviews with candidates from other races the rest of this week.

Voter ID trial still on track for September

It could have been delayed till after the November election.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

A federal judge in Corpus Christi ruled on Wednesday that a federal lawsuit challenging the legality of the state’s controversial Voter ID law is expected to begin in September as scheduled, 1200 WOAI news reports.

Civil Rights groups like the Mexican American Legislative Caucus, which is one of the groups fighting voter i.d., says it is very important that the law be thrown out before the November general election.

“We believe that conducting an election under a procedure that discriminates against the minority community would be wrong,” said Jose Garza, lead council for the MALC.

“We don’t want another election under a discriminatory election practice.”

Judge Nelva Gonzales Ramos made that ruling official on Friday. The trial date is set for September 2. This what the plaintiffs, who hope to get a ruling against the voter ID law before the November election, wanted. The Justice Department had asked for the postponement on the grounds that discovery was taking too long, with the state trying to hide behind claims of legislative privilege. The DOJ had also filed a motion to compel the state to turn over a bunch of documents; Judge Gonzales Ramos gave the state a deadline to reply and scheduled a hearing for that on March 5. As with the redistricting lawsuit, Abbott is asking for a broad definition of what legislators and staffers don’t have to testify about, and as with redistricting, he deserves to be swatted down. In the meantime, another matter was settled.

Judge Nelva Gonzales Ramos entered an order [Tuesday] afternoon adopting an agreement reached by the parties in Texas voter ID case to govern how complicated database matches will take place.

Under the agreement, the State of Texas will turnover – by Friday – information requested by the Justice Department in interrogatories from the state’s election database, DPS’ driver’s license and personal identification card databases, and the Texas concealed carry license database.

DOJ then will use the information provided to run searches to gauge what voters “have been issued a United States military identification card, certificate of naturalization, certificate of citizenship, passport or passport card, or veterans identification card” as well as whether a voter has “been determined by the Social Security Administration to have a disability, or by the Department of Veterans Affairs to have a disability rating of at least fifty percent.”

The Texas Election Law blog explains what that means, then considers the question of discovery and turning over documents that DOJ is asking for.

I speculate that DOJ and Texas are so far apart in their discussions of raw data in part because of differences in bureaucratic culture.

Assume for the sake of argument that members of the Texas Legislature collectively and intentionally planned to engage in the wholesale disenfranchisement of minority voters. In so doing, the lawmakers and their staff didn’t need any particular precision or careful data-based legal engineering. It was enough for them to intuit that any increase in the transaction costs associated with elections disproportionately affect the poor and minorities, as well as elderly and first-time voters. They didn’t actually need or want any data about the effect in detail, because the political purpose of the voter I.D. law isn’t to disenfranchise based on careful targeting. It’s to disenfranchise over the long haul.

It’s to put the thumb on the roulette wheel; to count cards at the blackjack table; to nudge the pinball machine without causing it to record a tilt. No subtlety or particular mathematical accuracy is needed or desirable (as any such accuracy would carry with it a discoverable paper trail, but more importantly, would actually cost money to create).

I don’t think the State of Texas is lying to hide its secret stash of high-level sociological evidence of voter disenfranchisement. It doesn’t have any secret stash of high-level sociological evidence of anything, because that would cost money.

Meanwhile, DOJ could argue to Texas with some despair, “you mean you passed a law without knowing what it would actually do?” To which the answer is “Yes. Of course. Have you actually been to our state lately?”

That makes an eerie amount of sense. We’ll see what the next hearing brings.

Third lawsuit filed against the voter ID law

The more, the merrier.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Two groups representing minority voters and officeholders sued to block the state’s new Voter ID law, which will be used for the first time in a statewide Texas election this November — barring intervention by a court.

The new law requires voters to show an approved photo identification card when they vote. Its requirements “have a discriminatory effect … and were enacted with a racially discriminatory purpose,” according to the lawsuit filed against the state by the Texas State Conference of NAACP Branches and the Texas House’s Mexican American Legislative Caucus.

[…]

In their suit, the groups said the new law “disproportionately prevent Latino and African-American citizens in Texas from voting in person and, in the totality of the circumstances, deny Latino and African American citizens an equal opportunity to participate in the political process and were enacted for that purpose.”

The suit was filed in federal court in Corpus Christi, where two similar cases are set for hearings later this month: one filed in June by a group including U.S. Rep. Marc Veasey, D-Fort Worth, and another by the U.S. Department of Justice, filed in August. Dallas County joined the Veasey lawsuit last month.

A copy of the suit is here, a scorecard of who’s suing for what is here, and a press statement from MALC is beneath the fold. I presume all these lawsuits will eventually be joined – a motion to do exactly that has already been filed – but the more resources going into fighting this terrible law, the better. Now we just need someone to file for a TRO to keep it from being enforced before the litigation concludes. I’m hoping that happens before November 5.

(more…)

Abbott versus Garza on voter ID

They’ve battled in court, and now they’re battling in the news.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Texas Attorney General Greg Abbott on Monday called a lawyer for the Mexican American Legislative Caucus unethical for his suggestion that people in the Rio Grande Valley attempt to vote without a photo ID.

Jose Garza, a lawyer who represents MALC in its fights against the state of Texas on voter ID and redistricting, reportedly encouraged voters in Edinburg to try to cast a ballot in next month’s city council elections without a photo ID. State lawmakers passed the voter ID bill — which requires voters to show one of several state- or federally issued forms of ID to vote — in 2011, but it was kept on hold until a June U.S. Supreme Court decision made its implementation possible.

“I would encourage everybody who wants to test this law to go and attempt to cast their ballot using their voter registration card,” Garza told the Rio Grande Guardian last week. “Let us test the impact of this law. We need to be able to measure how many people this law kept from voting.”

Abbott, whose office sued the Obama administration when the federal government originally blocked the ID requirement, said Monday that Garza is the one guilty of trying to suppress the vote, the common argument for opponents of the photo requirement who call the measure a 21st-century poll tax.

“It is always unethical for a lawyer to advise someone to violate Texas law. Even worse, Garza’s advice does not inform voters to bring one of the acceptable forms of voter ID,” Abbott said in a statement. “Instead, in an attempt to create a false impression that voter ID suppresses votes, the unethical advice is to come to the polls without the needed ID.”

Garza has since released a statement that fired back at Abbott.

Today, the attorney general questioned my integrity and said that I am advising voters to come to the polls without the photo identification that is now required to vote. Let me be very clear and set the record straight, I have never encouraged Texans to violate the law.

Everyone who is legally registered and eligible to vote ought to go vote. For those that are eligible and registered, but cannot obtain a valid photo ID as required by SB 14, I would advise them to also go vote and possibly cast a provisional ballot. Do not stay home and allow a discriminatory law to suppress your vote and voice. That is my message to Edinburg’s voters.

A federal court denied preclearance to Texas’ voter/photo ID law, stating that the undisputed record of evidence demonstrated that the voter identification requirement would have harmed the right to vote for many Texas minorities. Just because Section 5 is not in effect at the moment does not mean that the retrogressive effect of the photo identification requirement does not exist. I would advise the attorney general to do everything in his power to address the concerns of the D.C. Federal District Court and alleviate the undue burden that is being placed on the poor to exercise their constitutional right to vote.

General Abbott’s statement about my personal integrity is yet another ill-advised tactic to evade responsibility and accountability for seeking the implementation of an unjust and, I believe, unconstitutional law. If the citizens of Edinburg cannot vote, it is not because of me, but because of a law designed to disenfranchise hundreds of thousands of poor and minority voters.

Emphasis in the original. Speaking of which, let’s go to the original story to see what really was said and meant.

Jose Garza believes a new Texas law requiring voters to bring along a certain type of photo identification is unconstitutional. He wants to bring a lawsuit against Texas and for this he needs practical examples of registered voters being denied the right to vote because they did not show up with an approved photo ID card.

“Anybody who is validly registered to vote and has a registration card or is clearly on the registration rolls should go and attempt to vote anyway, even if they do not have a photo ID,” Garza told the Guardian. “I believe the photo ID law is unconstitutional.”

[…]

“The photo ID legislation may be the law of the land in Texas but I believe it is unconstitutional. The only way you can challenge it is to find people who have been denied the right to vote because they did not comply with this specific term,” Garza said.

“So, I would encourage everybody who wants to test this law to go and attempt to cast their ballot using their voter registration card. Let us test the impact of this law. We need to be able to measure how many people this law kept from voting.”

[…]

“You can be denied the right to vote if you do not have the right type of photo ID. If you have a driver’s license that has been expired for more than 60 days that is not good enough. If you have a photo ID from your university or college, that is not good enough. If you have a photo ID from work, an employee from a school district, a city, the state of Texas or the federal government, that is not good enough. But if you have a photo ID from your concealed hand gun license, you can vote,” Garza explained.

“If you were involved in an accident and you have a DWI and your license has been suspended, even though you are otherwise eligible to vote, if your license has been suspended for more than 60 days, you cannot use that as an ID at the polling place and you will not be allowed to vote.”

Edinburg is a university town. Garza said UT-Pan American students that are registered to vote should take along their student photo ID card to the polls and offer this as a photo ID card. If they and others who are on the voter rolls are denied the right to vote, they should call MALC, the ACLU, MALDEF, LULAC, or the South Texas Civil Rights Project, Garza said.

A reporter put it to Garza that if such voters carry out his advice they may could be denied their legitimate right to vote and that this could influence the outcome of the Edinburg special election. Garza acknowledged this was the case but said the fight to stop voter suppression in Texas was worth it.

“It is better than staying home. If a voter is denied the right, they should call us or LULAC or the Texas Civil Rights Project or the ACLU or MALDEF. All of these groups are interested in the impact of this law. They will want to hear from those who are being denied the right to vote because they did not have the appropriate photo ID,” Garza said.

“If you are a student and all you have is your student ID you should try to vote, show it. They are going to be denied but they are otherwise eligible. A student photo ID is as good a proof of who you say you are as a concealed hand gun license is.”

On the one hand, Garza is clearly saying that anyone who is registered to vote but doesn’t have one of the very few types of legal ID should go and vote anyway. If nothing else, seeing how many provisional votes wind up getting cast and where they are will help clarify things as the next round of litigation moves forward. You know that I agree with Garza about the unconstitutional nature of voter ID, and that I believe Texas’ ridiculous and arbitrary restrictions on what ID is required is strong evidence of the discriminatory intent of this law. Still, Garza does appear to be calling for what is basically civil disobedience here. I admire the sentiment, but it’s not clear what would be gained by it. There’s no capacity for shame among Abbott and his acolytes, and whatever the courts say the way to win on this is by winning elections. Casting needless provisional votes, however strong a statement, won’t help with that. Go vote whether you have the required ID or not, but do bring it if you have it.

Many questions at the redistricting hearing

From the Trib:

The Legislature is currently considering whether to ratify maps drawn by the three federal judges and used in the 2012 elections. It became clear during Wednesday’s hearing that the judges and the lawyers in the case agree that the Legislature probably can’t make changes to the maps during the special session — given the charge for that session from Gov. Rick Perry.

The judges didn’t decide anything, though they asked the lawyers several questions about where things stand and how the cases should proceed. Questions include:

  • If the Legislature adopts the court’s lines as its own, should the litigation underway in San Antonio stop and leave future arguments to other courts?
  • Should objections to the state-drawn maps extend to similar lines in the court-drawn maps?
  • Should new information about elections and demographics be used in putting new maps together if it wasn’t available to lawmakers when they first drew maps in 2011?

That’s all open to argument, which is why the court asked the lawyers to file briefs. Lawmakers have said they could be finished in a week to ten days. If that’s so, the judges could be free to decide their own next move knowing what the Legislature wants to do. The lawyers have until next Wednesday to file their briefs, and the judges said they’ll call another hearing sometime after that.

Texas Redistricting goes into more detail.

Hispanic and African-American plaintiff groups took strong issue with the State of Texas’ argument that the case would essentially begin anew.

Jose Garza, counsel for the Mexican-American Legislative Caucus, told the three-judge panel that, if the Legislature were adopt the interim maps as permanent, the plaintiffs would be amending their pleadings to include claims based on those maps – and that case law supported the court’s retention of jurisdiction in those circumstances.

And they argued that because the new legislative maps would not really be new maps but rather a variant of the legislatively enacted maps that the court previously considered, the court’s work would essentially pick up where it left off when the interim maps were adopted.

At various points in the hearing, the narrowness of Gov. Perry’s special session call came into question.

Although the state’s lawyer David Mattax said that he could not say whether the call would restrict consideration of alternate maps, lawyers for plaintiff groups – and Circuit Judge Jerry Smith – suggested that it did – and plaintiff groups said that was further evidence that not only were the maps not new, but that Republican leaders had predetermined the outcome – and once again excluded meaningful input from minority groups.

But in a sign of how complicated and unprecedented the current scenario is, Garza and lawyers for the other plaintiff groups said how the court went about its work would depend on whether section 5 survives Shelby Co.

If section 5 is upheld, they said the court would need to consider whether adjustments to the maps would be needed to incorporate the D.C. court’s preclearance findings – a position that Mattax agreed with notwithstanding his position that the maps would be new enactments.

And, if section 5 is struck down, the court would need to address the plaintiffs’ section 2 and constitutional claims, giving preclusive effect to the D.C court’s ruling on issues like discriminatory intent.

The preclusion question drew opposition from the state and extended questioning from Judge Jerry Smith – but no resolution today.

I presume the reason why the plaintiffs want the court to consider the interim maps as the same as the legislatively drawn maps is that most of the groundwork has already been done, so if the interim maps are just variations on a theme then this could all quite reasonably end up with new, more plaintiff-friendly maps in time for the 2014 elections. If we have to start from scratch, however, it’s hard to see how everything could be done in time for the December filing season. That could mean delayed primaries again, or it could mean we keep the interim maps for 2014 and aim for resolution in 2016. Once you see it in those terms, it’s clear why the plaintiffs want to pick up where we left off, and the state wants a do-over.

As for the question about whether the interim maps could be amended during the special session, this isn’t rocket science. Greg Abbott has been calling for the interim maps to be adopted since March, as a piece of strategy to bolster his legal defense of the maps. Discussion was never part of the plan. The irony is that the Republicans were slapped after the 2011 redistricting for ramrodding the process and avoiding input and feedback from minority groups. You’d think they’d learn, but then no, you wouldn’t. Anyway, MALC Chairman Rep. Trey Martinez-Fischer sent a letter to House Redistricting Chair Drew Darby, asking to bring the Governor’s office and the AG’s office to the hearings to ask about the agenda and why there’s no apparent room for input in the session. That ought to be fun if Darby accedes to the request.

Finally, everyone officially agreed that the Senate map needed no further changes, so the court will enter an order to that effect and award attorney’s fees to Sen. Wendy Davis once everything else is settled. Going by the briefing schedule the next hearing will be in August, after the Shelby decision is handed down.

Abbott predicts special session for redistricting

For the first time, someone says out loud the rumor of a special session on redistricting.

Still not Greg Abbott

Attorney General Greg Abbott let House members know in the Republican caucus meeting on Tuesday that he expects and is hoping for a special session on redistricting — sooner than later.

Several lawmakers in the meeting confirmed that Abbott was hoping the governor will call a special session very shortly after the regular one ends on May 27.

“Don’t pack your bags on May 28,” several members quoted him saying.

[…]

Everything is kind of on hold until the Supreme Court rules on whether the pre-clearance requirements, mostly imposed on Southern states with a history of discrimination, is even legal. That is likely to come next month.

In the meanwhile, Abbott would very much like to codify the maps tweaked by the courts, giving him strength if he needs to return to court to defend the districts.

[…]

If Perry does call a special session, he’s likely hoping it will be swift and sure because the maps are already in place. While there is certain to be a minority push for better representation, the truth is everyone in the Legislature got there last November running in those districts.

With a filing deadline for offices coming in early December, the Legislature would have to get the maps to the court by late August to give adequate time for review, Li said. That’s cutting it pretty close.

More likely in June. But there’s also another deadline looming: Perry is expected to become a grandfather for the first time around June 20. Bets are he won’t want to be dealing with a special session when he’s got something more special going on.

See here, here, and here for some background. “Expects” and “is hoping for” are two different things, so it’s still not clear if this means anything more than rumor, albeit a better-sourced rumor. It still doesn’t really mean anything until we hear Rick Perry say it. And Perry still isn’t talking, though just about everybody else is.

“I think a special session is pretty much certain,” said state Sen. Royce West, D-Dallas. “The reason is that the attorney general wants the Legislature to approve the maps the courts have drawn for redistricting. There are a number of people (Democrats) who won’t vote for that. (The Republicans) don’t have the votes to get it through in the regular session, but they can push it through during a special session.”

During the regular session, Senate Democrats can block legislation under the so-called two-thirds rule, which requires 21 votes to bring up a bill for debate. That rule doesn’t apply during special sessions.

State Sen. Kel Seliger, R-Amarillo, who chaired the Senate’s redistricting committee two years ago, acknowledged that redistricting might be the focus of a special session.

“Even though no one has uttered a word to me about it,” he said, “we all know that’s out there.”

In the House, state Rep. Dan Branch, a Republican from Dallas and member of House Speaker Joe Straus’ leadership team, called a special session on redistricting a “real possibility.”

State Rep. Drew Darby, R- San Angelo and chairman of the House Redistricting committee, said his staff is looking into what would be involved if a special session on redistricting is called.

“We stand ready. We are preparing for any eventuality,” Darby said.

For all the speculation about a special session, the governor’s office has remained quiet on the issue. And only the governor has the power to call one and to put items on its agenda. Josh Havens, a Perry spokesman, said it’s premature to talk about a special session.

Once again, the mere fact of a special session doesn’t mean the two thirds rule is not in play. The Senate sets its rules at the start of each session, and it can choose by majority vote whether or not to adhere to that rule. I’d expect that they would choose not to, but my point again is that it is a choice, not a default.

The reasons for having a special session now remain unclear, at least to me. Dems want to wait till SCOTUS rules on Section 5, while Abbott is talking about how having the interim maps be codified by the Lege would make his position in court stronger. That sounds like both of them have some expectation that Section 5 will survive, though it should be noted that there were Section 2 violations found in the original maps as well, so regardless of what SCOTUS says there likely will be some ongoing litigation. We know that most of the plaintiffs are not willing to settle for the interim maps, though the fact that everyone in the Lege was elected under those maps, nearly all more comfortably than in 2008, might complicate things a bit. I’m still not sure that everyone has thought all of this through, and I’m not sure it’s even possible to do that coherently. At this point, I have no idea what to expect.

Redistricting remains a partisan issue

We’re not surprised by this, right?

Alternate Plan C236 by Rep. Yvonne Davis

Amarillo Sen. Kel Seliger offered a redistricting bill to the Senate State Affairs Committee that would formally adopt interim maps drawn by a federal court in San Antonio last year. The maps for Congressional, state Senate and House districts were used for the 2012 election while a federal court in Washington DC reviewed maps drawn by the Legislature after minority groups filed a lawsuit to block them.

After the 2012 primary, that federal three-judge panel determined that the Republican-controlled Legislature intentionally discriminated against African Americans and Latinos, prompting Attorney General Greg Abbott to appeal the decision to the U.S. Supreme Court and challenge the court’s authority to review the maps under Section 5 of the Voting Rights Act.

Seliger throwing out the old maps and formally adopting the San Antonio court’s interim maps would end the litigation.

“The interim maps represent the court’s best judgment as to the maps that would be fully legal and constitutional,” he said. “Enacting these lawful and constitutional interim plans will help bring to a close this chapter of redistricting, enacting these plans will practically ensure that the ongoing litigation over Texas redistricting plans will come to a swift end and bring some surety of the primaries ensuing.”

The Senate Democratic Caucus, Mexican American Legislative Caucus, NAACP and voting rights group Common Cause leapt to oppose the measure and Seliger’s assertions.

“Neither I nor my 11 colleagues … can trust the redistricting process,” said Sen. Kirk Watson, representing Senate Democrats. “Texas was the only state in the nation subject to Section 5 of the Voting Rights Act that was found to have deliberately discriminated against African American and Latino citizens.”

He said Abbott’s efforts to overturn Section 5 of the Voting Rights Act and to restore the original maps the Washington court found discriminatory could only lead Democrats and minorities to distrust Seliger’s bill.

Jose Garza, an attorney with the Mexican American Legislative Caucus who argued before the Washington court, said Seliger mischaracterized the interim maps and said Washington court’s decision called for the San Antonio court to draw yet another set of maps. He promised continued litigation if the Legislature adopted the interim maps.

In fact, MALC has opposed the plan to adopt the interim maps as permanent all along. I don’t have any idea where he gets the impression that adopting the interim maps would end litigation. The San Antonio court did draw the interim maps based on instructions from SCOTUS to fix what they thought were problems with the legislatively drawn maps, but all that was done well before the preclearance trial, in which the DC court found persistent discrimination in the maps and the process. If they knew then what they know now, it’s very possible, if not likely, that the San Antonio court would have drawn different maps. You can certainly argue that the interim maps are sufficient, the point is that you can also argue that they are not. For that simple reason, adopting them as permanent would not settle the arguments.

Texas Redistricting recaps the hearing, which he calls “relatively sedate”. Of interest is that the Senate Democrats refused to budge at all on this.

Watson told the committee that the Democratic caucus was opposed even to the possibility of taking up the state senate map on a stand alone basis.

Watson explained that’s because although there is no dispute on the interim senate map, the caucus was concerned that House Republicans would amend the bill to add back the state house and congressional maps, after which only a simple majority would be required in the senate to pass the bill. Watson said that after years of redistricting battles, senate Democrats no longer felt they could trust the process.

State Sen. Rodney Ellis (D-Houston) also expressed concerns about the process and the possibility that Republicans might try to circumvent the 2/3 rule, noting that deviations from the established rules in 2011 were one of the things cited by the D.C. court as supporting a finding of discriminatory intent.

Senate Dems can use the two-thirds rule to block Sen. Seliger’s map from reaching the floor. House Democrats are also unanimous in their opposition to adopting the interim maps as permanent, though there’s not much they can do to stop it in their chamber short of a walkout. It’s still remarkable to see all 67 Dems in the Lege unite on something.

Anyway, there’s no sign of the House taking up the companion bill by Rep. Drew Darby as yet. Written testimony to the Senate committee is due by 5 PM on April 24.

Weekend redistricting update

One more plaintiff has signed on to the Abbott map deal.

The Mexican American Legislative Caucus is now joining the Mexican American Legal Defense and Educational Fund in saying that the state-backed Congressional District 35, a proposed new district that runs from Austin to San Antonio, is “constitutionally permissible,” according to the caucus’s chairman, state Rep. Trey Martinez Fischer, D-San Antonio.

The proposed District 35 does not have the backing of other plaintiff groups that have sued the state over its three redistricting maps, nor has it been sanctioned by the federal court in San Antonio that is hearing one of the redistricting cases. The court had asked the groups to work together to create a set of compromise maps.

[…]

The Mexican American Legislative Caucus on Friday also agreed on the constitutionality of a proposed congressional district in the Dallas-Fort Worth area, District 33.

BOR clarifies what this means.

[I]t is not true that MALC endorsed the version of CD-35 that MALDEF supports — rather, MALC’s lawyers asserted that the MALDEF-supported version of CD-35 is not unconstitutional. They are not officially endorsing this version of the map at this time, merely stating that legally, they do not view CD-35 in the Abbott/MALDEF incarnation to be unconstitutional. That’s a big difference than what was widely reported earlier today — that MALC is endorsing this version of CD-35.

The Travis County Plaintiffs and NAACP understandably still oppose this version of CD-35 given its impact on CD-25. Their argument is that the coalition of minority voters and white voters who also choose the minority voters’ candidate form a legally protected cross-over district, and can’t be split apart. This is the the same argument that led to a settlement over SD-10, so ideally any Congressional settlement should in turn restore CD-25 to an Austin cross-over district.

I’m not sure how much difference that makes in practice, but there it is. In the meantime, there are more briefs on those contested Congressional districts, and another Congressional map proposal from the Quesada plaintiffs. CDs 23 and 27 are also still in dispute.

The State House map remains in complete disarray. MALC said that the state is no longer negotiating with them as of Wednesday. BOR has a comprehensive look at the many points of contention, along with a plaintiffs’ exhibit that lays out where minority communities were fractured and spread among Anglo-dominated districts, mostly in urban counties like Harris and Dallas but also in Fort Bend and Bell. The Perez plaintiffs have further objections as well. Harold Cook sums it all up.

Pretty much out of lame map-related puns at this time

[Wednesday] a couple of the (probably exhausted and flabbergasted) judges wondered aloud if the bulk of the courtroom squabbling regarding the map for the state House of Representatives is only about a couple of districts.

Well, no. It’s not about whether there are 50 or 52 solidly minority districts. It’s about minority Texans continuing to have a voice in the districts beyond the hard core 50. It’s about the state’s efforts to silence those voices in many more than two chunks of geography. And that, in turn, is about whether legislators who represent those minorities are able to participate in meaningful dialog on legislation, or whether those legislators, like in the most recent legislative session, merely look on as witnesses, as an artificially-inflated majority assaults their constituents by cutting public education by billions, harassing them with voter photo I.D. laws, or ignoring attempts to make health care affordable to folks in their neighborhoods.

Texas has a majority minority population. There are 150 seats in the state House. The squabbling in court should not be about whether 52(ish) of those 150 districts should be the geography in which minority voices are heard.

If you’re the “quantify it” type, in addition to those 52(ish) seats, minority citizens were also decisive in electing their candidates of choice in House districts 57, 93, 96, 101, 102, 107, and 133. Minority citizens are also naturally emerging as effective deciders of their own fate in districts 26, 105, 132, and 138.

So if the remaining argument is about “just a couple of state House districts,” it’s only because lawyers cleverly, or foolishly, narrowed the focus. It’s not because minority voters in many, many other areas of Texas evaporated, were raptured, or suddenly moved to Detroit after Clint Eastwood inspired them during the Superbowl. And while the priorities of those Texans are just as real as the priorities of those living in Wendy Davis’ district, or the proposed new metroplex Congressional district, their communities are being fragmented in the exact same way, and for the same purpose: to silence their voices.

Late Friday, the San Antonio court ordered briefings on the Abbott plan (Plan H303) for the State House, due on Tuesday.

The court’s order said that it wanted briefing on any district that was different from the plan enacted by the Texas Legislature (H283).

There’s still a lot of work to be done. The Senate map agreement felt like progress, but we’re still miles away from the finish line.

While we wait for another deal, if there is one

Michael Li reminds us what comes next.

Waiting for a map like you, to come into my life

The San Antonio court has scheduled a hearing on interim maps and the election schedule for next Wednesday, February 15, with briefs on a broad range of issues due this Friday.

That gives the parties a week to continue talking, and it is possible further consensus could be reached. If there isn’t a consensus, the court will begin the process of drawing interim maps.

The state and the Republican Party of Texas have said that they think matters are far along enough that the court should be able to complete maps by February 20 and allow a primary to go forward on April 10 or April 17. However, there are some legal and logistical issues that still might prevent that (more here).

The RPT also has suggested April 24 as a primary date but, at the last hearing, there was some concern that day would prove to be unworkable because of the need to prepare for early voting in municipal and school board elections, which begins the following week.

If April doesn’t work, the most viable dates after that are May 29 and June 26.

You should of course be reading Texas Redistricting, but in case you’re not for some reason, here’s some additional reactions to the “deal”, from Rep. Eddie Bernice Johnson, the NAACP, MALC, and the Republican Party, which is clearly trying to sell it to its members. Here also are the post-trial briefs from the preclearance trial, for which we’re all waiting on a ruling.

Elsewhere on the interwebs, Politico reports that some of Rep. Henry Cuellar’s colleagues aren’t too happy with him for his endorsement of the Abbott “deal”.

Democrats are stunned that Cuellar would negotiate with Republicans, let alone agree to a map they argue would cost the party several seats and rob minorities of the chance to maximize their gains in the House of Representatives.

“He’s a deplorable, dishonest person. He’s proven it time and time again in redistricting,” said Matt Angle, founder of the Lone Star Project, a group aimed at supporting Democratic candidates in Texas. “I know it sounds over the top, but it’s true.”

The compromise map that Abbott and Cuellar agreed to is very similar to one that the Republican-controlled Texas Legislature approved last year, which would have positioned Democrats to win only 11 of the state’s 36 congressional seats.

Democrats had objected to the Legislature-drawn map, arguing in federal court that it doesn’t sufficiently recognize the state’s booming minority population. Democrats want an interim plan that more closely resembles one drawn by a San Antonio-based court that would have made it likely for the party to hold 13 of the 36 seats. The Supreme Court struck down the interim plan last month.

Let me interrupt here to say that I don’t know what numbers Politico is going by. By my count, the legislatively-drawn map, was 26-10 GOP, with CD23 being lean GOP and CD14 being potentially competitive, while the Abbott map was likely to have at least 11 Dem seats, with CD23 being tossup/lean Dem, and CD14 being lean GOP, though that may be more the influence of the declared candidate than the map itself. If all you knew were the straight R and D numbers, it’s better than what the Dems started with, albeit not quite as good as what they almost had. Obviously, there’s more to it than that, and I don’t care for this deal because I think it’s the low end of what is possible, but it’s not the worst thing in the world.

It hasn’t been unusual for Democrats to partner with Republicans on redistricting. With the GOP controlling much of line-drawing this go-around, Democrats across the country have forged alliances with Republicans to ensure they get favorable treatment in the redistricting process, which can make or break a member’s political fortunes.

Mexican American Legislative Caucus Chairman Trey Martinez Fischer called Cuellar’s agreement an effort by the congressman to finalize a rock-solid, South Central Texas-based district for himself to run in. But he argued it would have little impact on the final lines.

“I take Henry’s actions at face value,” said Fischer, who called Cuellar a friend. “The consequences of this agreement really don’t go beyond the confines of his district.”

Cuellar disputed the idea that he’s looking out for himself at others’ expense, pointing out that he’s been well-positioned to win reelection in each of the proposed maps. He said he felt no need to promote one plan over another to get a leg up.

Rather, he said he aimed to advance a plan that would help solidify a set of minority-held seats. On Monday, his office released a lengthy statement detailing how the plan would advance the interests of Hispanic and black candidates seeking House seats.

“To say I did this for my own interests is absolutely crazy,” Cuellar told POLITICO. “This has nothing to do with self-promotion. Anyone who says anything else is being dishonest with you.”

Rep. Cuellar has filed an advisory with the court, urging it to adopt the Abbott map. For what it’s worth, Smokey Joe Barton filed his own advisory saying that he “strongly objects to this proposed settlement”. So the bipartisanship goes both ways.

Anyway. BOR speculates why Abbott is pushing for a deal. I think there’s a lot of pressure on him, but it’s not clear to me that it’s all or even primarily in one direction. At the end of the day, redistricting is always more multidimensional than just R versus D. Prof. Murray provides some historical context to what’s going on. Finally, I got a request after the previous numbers post to include results from the 2008 Court of Criminal Appeals race for Position 3, in which Susan Strawn was the Democratic candidate. As this post is long enough already, I’ve put those numbers, which include a couple of State Rep districts I didn’t list before, beneath the fold.

UPDATE: Stace has a guest post from Joe Cardenas of Texas LULAC on why the Texas Latino Redistricting Task Force likes the Abbott maps.

(more…)

Redistricting settlement deal looking unlikely

Late last week we heard about the possibility of a settlement agreement in the San Antonio redistricting case that would allow for the creation of interim maps in time to keep the April 3 primary date. The court gave this Friday as a drop dead date for getting that done. As of today, it’s looking like that’s not going to happen.

Deal or no deal?

There were rumors floating around all weekend that there could be a deal struck as early as today, but with all parties heading to DC to catch closing arguments in the preclearance hearing tomorrow, Jan. 31, that seems unlikely. The Mexican American Legislative Caucus told the Chronicle this morning that a deal is not imminent, even though they are all working towards some kind of agreement.

MALC (and particularly chair Rep. Trez Martinez Fischer, D-San Antonio) and MALDEF are clearly most interested in creating the largest number possible of Hispanic opportunity districts. However, that could clash severely with both the interests of the other plaintiffs (many of whom are looking for more Democratic opportunity seats) and the historic coalition between African-American and Hispanic groups. Throughout this process, LULAC and the NAACP have been very much on the same page, and have not always been in complete agreement with MALC and MALDEF.

It would not be too surprising if MALDEF backed something closer to the legislature’s maps than the other plaintiffs would be comfortable with: After all, they were fine with a map that would split Travis County four ways and draw Congressman Lloyd Doggett into a Democratic primary with San Antonio’s Rep. Juan Castro.

[…]

The time crunch means the plaintiffs can dangle the equal representation terms of Section Two of the Voting Rights Act over the assembled heads of Attorney General Greg Abbott’s team. However, the DC District Court is expected to rule this week on whether the legislature’s maps violate the preclearance terms of Section Five of the VRA. There are undoubtedly voices in the room suggesting that the plaintiffs would be in a much stronger negotiating position – and that the state would have little legal wiggle room – if they just wait a couple more days.

Most importantly, as one source close to the negotiations put it, all the parties should be more concerned about ensuring true representation for all Texans that holding on to the arbitrary April 3 primary date.

ADDENDUM: Just got an email from LULAC attorney Luis Roberto Vera, Jr. who confirmed that his clients (who are still pushing for coalition districts) are still pushing to wait for the DC ruling, and that was the stated position of all plaintiffs to the San Antonio panel before this weekend. “As to negotiations,” he wrote, “they have totally broken down as of now. I am sure they will resume but I doubt an agreement if at all by this Monday so I don’t expect an April 3rd election.”

The Statesman reports that the AG has been trying to find a wedge in the plaintiffs’ unity.

Representatives for other plaintiff groups also didn’t want to speak publicly because of the delicate nature of the ongoing negotiations. But there has been some chatter among the groups that lawyers for the Mexican American Legislative Caucus and the Mexican American Legal Defense and Educational Fund, two of the main plaintiffs driving the litigation, have been talking to the state without other groups.

Though he didn’t name any groups in particular, Vera said some of the state’s lawyers were offering some plaintiffs’ lawyers deals that would benefit Latino groups but might be seen as detrimental to African American plaintiffs.

Vera said a major obstacle is that the state isn’t involving all parties in the negotiations. Gary Bledsoe, president of the Texas NAACP, which is among the plaintiffs, said the state was mainly negotiating with MALDEF and the Mexican American Legislative Caucus.

Bledsoe said unanimous agreement among the nine isn’t required for the court to accept a deal. He said he believes that there is a “reasonable chance” the state could work out a deal with two or three of the groups but that the odds of getting total consensus are longer.

State Rep. Trey Martinez Fischer, a San Antonio Democrat and chairman of the Mexican American Legislative Caucus, said his organization had been in touch with lawyers from Abbott’s office and gave them a strict set of parameters that would need to be met before they could agree to anything.

The Express News adds on.

Martinez Fischer said he thought the attorney general’s office was trying to work with as many plaintiffs groups as possible.

“Their intention is to try and work something out,” a stance he called “encouraging.”

But thus far, he said, MALC hasn’t been satisfied with what the state has offered. He declined to offer specifics.

Even if an agreement is reached, it could still be challenged.

An attorney for U.S. Rep. Joe Barton, R-Ennis, argued Friday before the three-judge panel in San Antonio that the attorney general’s office doesn’t have the authority to remake maps approved by the Legislature and that any maps that were redrawn would also need to be approved, or “precleared,” by the Justice Department.

Texas Attorney General Greg Abbott “would be agreeing to something that the Legislature did, so it would become new state policy,” attorney Trey Trainor said. “Well, the state doesn’t have the ability to implement change of voting policy without preclearance.”

Texas must get approval for new maps from the Justice Department under the Voting Rights Act because of the state’s history of discrimination.

Vera thinks that the plaintiffs should wait on the D.C. panel to rule rather than settle with Abbott’s office.

“There was so much evidence of racial discrimination,” he said. “Texas is going to get nailed, and nailed hard.”

If that really is the case, then there’s little incentive for the plaintiffs to settle. The primary date was more of an issue for Republicans, who want to have a say in their Presidential race and whose financial exposure for the state conventions is greater. And the previous talk about settlements, which sounded very favorable from a Democratic perspective, have apparently ruffled some feathers on that side of the aisle. Michael Li quotes from a post by RPT Chair Steve Munisteri, whose backside is clearly seeking some concealment:

It is important to note, that the talks between the Democratic and Republican parties deal solely with the deadlines and scheduling of the primary election, not with the boundaries of state legislative or Congressional districts. Only the Attorney General’s office’s attorneys are involved in those discussions. Thus, the email chains that have gone out accusing the Republican Party of Texas of trying to save a convention deposit in exchange for district lines, are blatantly false.

Emphasis mine. Translation: Don’t blame me if the pooch gets screwed.

Meanwhile, closing arguments were made in the DC preclearance trial, and from the sound of it the plaintiffs have good reason to be hopeful.

The three-judge panel frequently interrupted the state’s closing presentation on Tuesday, probed some of its most basic positions and questioned its interpretation of some evidence.

Lawyers for Texas argued throughout the trial that the GOP-controlled Legislature created oddly shaped districts and used gerrymandering techniques to protect Republican incumbents–not to discriminate against racial minorities. Political gerrymandering is legal, if not pretty, they said.

Judge Rosemary Collyer questioned whether politics could excuse the fracturing of minority communities, who fueled 89 percent of Texas’ population growth in the last decade and helped the state gain four new seats in Congress.

“It’s really hard to explain that,” she said, “other than on the basis of reducing the effectiveness of the minority vote, whether black or Latino.”

She pointed to the Legislature’s plans for congressional seats in the Dallas-Forth Worth area. District boundaries carve up much of the urban center–largely minority and Democratic–and disperses it into GOP-friendly districts in the suburbs.

Judge Beryl Howell said the state’s position treats minority populations as “collateral damage,” and Judge Thomas Griffith asked whether law required the Legislature to take the racial impact of its plans into consideration, even if the primary motive was political.

The state’s attorneys, who ended up spending much of their final statement answering questions, stuck to their position.

That doesn’t necessarily mean anything, but it’s often a sign of how the judges are thinking. If my reading is correct, that would be one reason why the state was interested in settling. By the same token, of course, that would be a disincentive for the plaintiffs to cut a deal. At this point, I’d say we’re waiting for the DC court to rule before anything else happens. We’ll know soon enough, though whether it’s soon enough to keep an April primary is question #1 and highly dependent on how soon we know. Campos has more.

Could there be a settlement in the redistricting lawsuit?

Maybe.

A leading player in the state’s redistricting turmoil said this morning he’s hopeful that both sides are closing in on a settlement that will salvage Texas’ April 3 primary.

Texas Attorney General Greg Abbott has been meeting with representatives of minority groups that sued the state last year to stop new political boundaries from taking effect on grounds the decade-long maps ignore profound population growth of minority Texans – mostly Hispanics.

“I am confident that the parties are working in good faith and have enough time to craft a compromise that will assure that the April primaries go on as scheduled,” said state Rep. Trey Martinez Fischer, D-San Antonio, chairman of the House Mexican American Legislative Caucus, which is one of the parties suing the state.

Caught off guard as he was preparing for a 1 p.m. court hearing in San Antonio before three federal judges refereering the redistricting fight, Martinez Fischer acknowledged that lawyers for his organization have been talking with Abbott and others in the case about a settlement. Martinez Fischer said he could not share details.

A spokesman for Abbott said the attorney general will hold off commenting until the court hearing.

A settlement here means a set of interim maps that everyone agrees on that would be used for this year. I presume this means the other litigation, both in San Antonio and DC, would then continue – this would basically put us back to where we were with the original interim map in that the 2012 elections could go forward as currently scheduled (or possibly with the primary moved back to April 17) and the “permanent” maps would be determined later by the courts. Here’s a full statement from Rep. Martinez-Fischer:

“Since the early days of the legislative session, the Mexican American Legislative Caucus had been asking for Republican law-makers to negotiate fair maps that reflect the growing diversity of the State of Texas. I am encouraged by the Attorney General’s efforts to now strive towards that goal, but I must say that the evidence presented at trial in San Antonio and in Washington, D.C. are compelling. Given that evidence, any hope to arrive at a consensus will require that proposed compromise maps reflect the diversity of Texas and ensure that 3.7 million minority Texans are not be swept under the rug for the sake of partisan politics. I have asked MALC Legal Counsel Jose Garza to work within these parameters and I am confident in his ability to be the voice of Texas’ Latino voters.”

Looks like the parties will be working on this over the weekend. Final arguments are set for Tuesday – testimony concluded yesterday – but it’s the need to get lines in place so all the county clerks can do their job that really matters. Having a settlement means not having to wait for the DC court’s ruling on preclearance and not having to wait for the San Antonio court to do its re-draw. See Michael Li’s Twitter feed for the blow-by-blow.

UPDATE: If this is true, it’s amazing.

The Texas state attorneys defending the state’s GOP-drawn redistricting plans from court challenges have reached out to settle litigation, according to sources in the state. The settlement would give minority groups and Democrats what they’ve been demanding from the start: more heavily minority, Democratic-leaning House seats.

The result would likely mean at least four more Texas Democrats in Congress as of next year, a good start on the 25 or so seats Democrats need to win to retake control of the House.

“They’re backed up against the wall and have to come to some agreement and it’ll be awfully favorable on our end,” said one of the plaintiffs in the case.
Another plaintiff agreed. “It’s clear they know they’re in a vulnerable position and that’s why they want to settle,” he said.

Any settlement would need to get the multiple minority group plaintiffs on board, and would create more majority-Hispanic and majority-African American congressional districts. Two of the plaintiffs predicted that an agreement will be reached early next week.

[…]

Any agreement would lead to a minimum of 13 Democratic-leaning seats, and possibly a fourteenth seat depending on how the districts in Fort Worth are drawn.

With conservative former Rep. Nick Lampson (D-Texas) running for a Galveston-area seat, Democrats could win as many as 14 or 15 seats in the state, up from the nine seats they currently hold. Republicans would hold 21 or 22 seats, down from the 23 they currently have.

Those 23 seats include two Democratic-leaning seats won by Republican Reps. Quico Canseco and Blake Farenthold in the 2010 Republican wave election. Farenthold would have a chance to run in the same Galveston district Lampson is likely to run in, while Canseco would have an uphill fight for reelection.

Rep. Lloyd Doggett (D-Texas) is also likely to be spared a tough race — initial plans would have forced him to run in a Hispanic-majority seat, something Latino groups are looking to avoid.

If true, wow. Just, wow. Via Texas Redistricting.

Texas files suit to preclear voter ID

They’re a mighty busy bunch at the OAG these days.

The only voter ID anyone should need

The only voter ID anyone should need

The Texas attorney general’s office today filed suit against U.S. Attorney General Eric Holder and the Department of Justice to have the state’s controversial voter ID law implemented without further delay.

The law, Senate Bill 14 by state Sen. Troy Fraser, R-Horseshoe Bay, was scheduled to take effect Jan. 1. It requires that voters show a picture ID before casting a ballot. It has been tied up at the Justice Department since July. Under Section 5 of the federal Voting Rights Act, the department reserves the right to review laws that affect voter participation before they are enacted.

“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Texas Attorney General Greg Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”

Abbott’s office said that if the department grants the state’s request for preclearance, it would dismiss the suit.

You can see a copy of the complaint here. As Michael Li notes, the suit “does not challenge the constitutionality of section 5 on a facial basis but does extensively argue that failing to preclear Texas’ voter ID law would raise constitutional concerns, including possible violations of the 10th amendment and the state’s right to equal sovereignty”. The right of any individual to cast a vote is apparently not the State of Texas’ concern.

Rick Hasen delves more deeply into what the state is seeking.

In a recent Slate piece, I explained how South Carolina might file suit—and expedite it to the Supreme Court—arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty.  (In 2009 the Court strongly hinted that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement.  Congress did not act, but needs to.)  As some evidence South Carolina is considering going down that road, they’ve hired Supreme Court ace lawyer Paul Clement.

Today’s filing by Texas takes a slightly different tack.  It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act.  First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting.  Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem.   The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.

The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts.  South Carolina may offer the Court the former, and Texas the latter.

You have to wonder how history will judge some of the things we do this year, and the people who do them.

Anyway. As we know, the Justice Department has been asking the state for data about how this law will affect minority voters, and it’s only in the last couple of weeks that the state has sort of fulfilled those requests. The DOJ refused to preclear a new voter ID law in South Carolina on the grounds that it was discriminatory, with AG Abbott expressing at that time the opinion that Texas’ law was headed for a similar fate. We’ll see what the DC court makes of this. For what it’s worth, they so far have not shown any inclination in the redistricting preclearance lawsuit to be more lenient on the state than Justice would have been. Postcards has more, Texas Redistricting has a response to Abbott from MALC Chair Trey Martinez-Fischer, and a statement from Sen. Rodney Ellis is here.

DC preclearance trial, Day One

E. Barrett Prettyman Federal Courthouse, DC

While we wait for the Supreme Court to give us some indication of what happens next with our elections – they did not issue an opinion this week – the preclearance trial at the DC federal court got underway.

State Rep. Todd Hunter, R-Corpus Christi, testified that hearings were held statewide to allow input from all groups and citizens to form a bipartisan basis to redraw political lines.

Under cross-examination, though, Hunter said he was unaware that new political lines in Corpus Christi that eliminated a Latino state House seat also lumped all of his possible competitors into a neighboring district.

His claim that no one had complained about the minority makeup of the new state House districts was refuted with a videotape of Luis Figueroa of the Mexican American Legal Defense and Educational Fund telling a legislative hearing that eliminating the Corpus Christi seat would be tantamount to a Voting Rights Act violation.

Jose Garza, a lawyer with the Mexican American Legislative Caucus who was questioning Hunter, also told the court that he testified to the same problem before a state House committee.

There were hearings around the state, but it was also the case that there were almost no public hearings in the Legislature. The Congressional map passed through in record time, once the Republicans bothered to produce it. Seemed like the plaintiffs scored some points in the opening round, but it’s early days and there’s a lot of testimony to come, along with some pre-filed written testimony. The state’s case was simply summarized during pre-trial hearings.

In a hearing before the D.C. court, David Schenk, the Texas deputy attorney general, said the state did not intend to discriminate when it drew new political lines.

Without the intent of discrimination, the maps, which do protect Republican minority officeholders, should be approved.

“Texas did the best that it could,” Schenk argued.

I didn’t mean to smash into your car. I totally did the best I could driving, even if I was going 90 on a wet road at night. Without the intent to have an accident, I should be let go without a citation. Yeah, that sounds about right to me. We’ll see what the plaintiffs make of that. As always, Texas Redistricting has more.

Interim maps and the DC preclearance case

The federal court in San Antonio has been hearing arguments about proposed interim Congressional maps this week. Michael Li summarizes the plaintiffs’ case for why the map adopted by the Lege cannot be used, even as a starting point.

Right off the bat, the panel began by asking lawyers for the plaintiffs whether it would be possible to use uncontroversial portions of the state’s maps to form the core of the interim maps, citing the Panhandle as one example of an area where none of the plaintiff groups had alleged any problems.

Jose Garza for MALC gave the main presentation for plaintiffs and told the court that was impossible.

Until there is an adjudication that a map does not retrogress, Garza explained, a map cannot be used.

Garza distinguished the current situation from that in the Upham case cited by the state where the Department of Justice had objected to some parts of a map but not to others. In that case, Garza explained, the state (also Texas) had sought preclearance through an administrative proceeding before the DOJ. By contrast, in this case, the state had elected to go to a different decisionmaker- the three-judge panel in Washington – and, as a consequence of its own choice, there was no binding adjudication clearing portions of the maps.

Any other course would turn section 5 on its head, Garza said, by allowing a state to do exactly what section 5 prohibited – i.e., putting into effect an unprecleared map.

Garza further explained to the court that both the DOJ and intervenors in the D.C. case were alleging that the state’s maps were the product of a discriminatory purpose. According to Garza, this discriminatory purpose “infected’ the entire map and made it suspect.

Rather than starting with the state’s maps, lawyers for the plaintiffs told the court that the proper starting point for interim maps was the last legally enforceable map, i.e., Plan C100 – the current 32 district map.

The state naturally disagreed with that, and argued they were due some deference on the legislatively passed map. The questions they got from the judges over their argument seemed to indicate they did not see it that way.

If the judges agree with the plaintiffs, all of whom submitted their own proposals, what should the court use to guide it? The plaintiffs have a plan for that.

At the conclusion of the hearing, the panel asks the plaintiffs if they might be able to narrow the maps at issue by agreeing to maps or parts of maps. Jose Garza told the court that he thought at a minimum the plaintiffs would be able to clarify which of the other parties’ maps they endorsed and would try to have an announcement for the court when hearings resume Thursday morning.

The plaintiffs are expected to wrap up the congressional map portion of the hearing Thursday morning before moving on to interim state house maps.

Hearings on an interim state senate map are currently scheduled for Friday morning, but the parties indicated they might be ahead of schedule and would be prepared to do the senate map portion of the hearings on Thursday as well.

There was also discussion about a “compromise” map put forth by Reps. Henry Cuellar and Quico Canseco, and what disagreement there was among the plaintiffs mostly centered on Travis and Bexar Counties.

Meanwhile, arguments in the DC preclearance lawsuit got underway yesterday. Here’s an overview of the players involved, the arguments each side will be making, and the stakes.

Do the maps go into effect if the panel agrees with the State of Texas and grants preclearance?

No, not necessarily.

The state still will need to get past the panel in the parallel San Antonio case.

That panel last month heard claims under section 2 of Voting Rights Act that the state failed to create enough minority opportunity districts and various other constitutional claims but has been waiting to rule until a decision on preclearance.

Well, what happens if the court agrees with DOJ and the intervenors and holds that the maps are not enforceable?

If DOJ and the intervenors prevail, action still would shift back to San Antonio for the court there to draw remedial maps to remedy defects found by the D.C. court as well as to address any issues raised in the San Antonio case.

The degree of latitude the San Antonio court will have in drawing maps will depend on whether the entire map is invalidated or only parts of the map.

In theory, Governor Perry also could decide to call a special session of the Texas Legislature to draw replacement maps, but even the state’s lawyers concede that is not realistic since election deadlines are coming up and any legislatively passed map would need to go back through the preclearance process.

What about those election deadlines?

Right now, the candidate filing period in Texas opens November 12 and is scheduled to close December 12. However, the panel in the San Antonio case has indicated that it is likely to alter some of those deadlines.

The San Antonio court has asked the parties to submit proposed orders by 10:00 a.m. on Friday, November 4, with their suggestions for changes that need to be made. The expectation is that the court will enter an order by the end of the day.

More on the discussion about election deadlines can be found here:

http://tinyurl.com/5t4b2jp

The state has also made explicit its belief that the whole preclearance process is itself unconstitutional. Needless to say, that would be a big effing deal if it carries the day.

Whatever the case, no one expects the DC court to rule any time soon, so interim maps are all but guaranteed. And at least for the Congressional map, that looks like good news for Democrats.

If the Republican map became law, the GOP would likely enjoy a 26-10 advantage in the state House delegation, up from the 23-9 edge the party has now. But a court-drawn map will likely give Democrats 12 or 13 seats instead.

Republicans put themselves in this predicament with an aggressive gerrymander that might not pass legal muster. They also failed to pass a map with enough time to get it cleared in Washington, and opted to go through the courts instead of the Department of Justice, a much slower process.

The high stakes of the case could observed in the attendees: Top lawyers and strategists for both parties came to watch Wednesday’s oral arguments, as did Rep. Sheila Jackson Lee (D-Texas).

After judges questioned representatives of the state of Texas as well as officials from the Justice Department and civil-rights groups that are working to stop the map, they made it clear they would not approve the map early enough for it to be implemented in time for next year’s election.

They also seemed skeptical of the arguments Texas’s attorneys made about which factors should determine whether the state maps discriminated against minority voters — an ominous signal for the map down the road — and at times showed deference to Justice Department officials regarding some details of the case. Since those officials already have objected to aspects of the map, that is another bad sign for Texas Republicans.

Bear in mind that a 24-12 split, which would be a shift of two seats to the Democrats, still represents a two to one advantage for the Republican delegation. Outside of the 2010 anomaly, Texas is not a two-thirds red state. 23-13 is 64% GOP, still above the normal high water mark. A truly “fair” map, one that approximates the state’s normal statewide partisan performance, would be something like 57-43 GOP, or 21-15 in terms of the delegation. As I recall, only one of the Democratic maps proposed during the special session was that aggressive. Honestly, 23-13 is the best anyone can reasonably hope for – it basically means Dems get all four new seats – but forgive me if I temper my enthusiasm just a tad.

It’s unclear, and so far unreported, if there will be an interim map for the Lege and the Senate. Given that the Justice Department also objected to the Lege map, it’s hard to imagine there won’t be a court-drawn solution there as well. The Senate is more of an open question, since the DOJ took a pass on it. I guess we’ll find out soon enough. EoW has more.

UPDATE: And here’s a report from the DC Court hearing yesterday.

The interim plans

Monday was the deadline for parties in the redistricting lawsuit being heard in San Antonio to file interim plans for the court to consider in the event preclearance is not granted in time for candidate filing. Texas Redistricting summarizes the various plans that were presented to the court:

The Plaintiffs’ Interim Plans

All of the plaintiffs’ plans have substantial similarities, though they differ in the details.

All would add a new Hispanic opportunity district in North Texas, and all, in some way, would restore Lloyd Doggett’s congressional seat (CD-25)- most by creating a ‘tri-ethnic’ coalition seat strongly anchored, if not wholly contained, in Travis County. All also would make adjustments to CD-23- currently represented by freshman Republican, Quico Canseco- to improve the district’s ability the elect the “Hispanic candidate of choice.”

However, there also are divergences.

Proposals submitted separately by MALC and State Senator Wendy Davis and State Representative Marc Veasey would create an additional African-American opportunity district in the DFW Metroplex (CD-35 in both Plan C211 and Plans C202 and C204).

By contrast, the Texas Latino Redistricting Task Force and Travis County plaintiffs would forgo that seat and, instead, create a new Hispanic opportunity seat in Harris County (CD-36 in the Task Force’s Plan C213 and CD-36 in the Travis County plaintiffs’ Plan C166).

[…]

The State of Texas’ position

In its papers, the State of Texas, not surprisingly, takes the position that the panel should simply adopt the legislatively passed maps as the interim maps, arguing that the “intent of the State of Texas … is due great deference when the judiciary intercedes in the province of the legislative branch.”

[…]

Congressman Canseco

Freshman Republican Congressman Quico Canseco (CD-23) also has submitted two interim congressional map proposals (Plan C209 and Plan C212).

During trial on the claims before the San Antonio court, the court expressed a number of concerns about changes to CD-23 under the state’s map.

In response to concerns raised by the court at trial, both these maps would create a new Hispanic opportunity district in North Texas that is substantially identical to the district included in Congressman Lamar Smith’s proposal to the Texas Legislature in April 2011.

You can see links to all of the briefs that were filed at that post, and you can see the all of plan numbers here. All proposed interim maps can be found at http://gis1.tlc.state.tx.us. To view a map, click on ‘select plans’ and then ‘base plan.’ The congressional and state house plans are filed under Exhibits in Perez v. Perry, and state senate plans can be found under Exhibits in Davis v. Perry. You can zoom in on these maps to see street-level detail, which I needed to do during the legislative process to see which district my house was being moved to. The parties have until Monday the 24th to respond to any plan they object to – one presumes the plaintiffs have already made their feelings clear about the legislative maps, but I imagine they might reiterate those feelings, just in case – and on Wednesday, November 2 there will be a hearing at which the plans get formally presented. This Statesman story and Randy Bear have more, and an explanation of State Sen. Wendy Davis’ proposed Senate map is here.

TRO requested for redistricting plans

Texas Redistricting:

This morning, MALC and the Texas Latino Redistricting Task Force asked the San Antonio panel to enter a temporary restraining order to prevent the State of Texas from implementing its redistricting plans on the grounds that they have yet to receive pre-clearance under section 5 of the Voting Rights Act.

In what may be an opening salvo for an interim fix, MALC and the Task Force also suggested that it likely would be necessary for the San Antonio panel to “devise a temporary court-ordered plan in time for the 2012 election cycle” in order to make sure the state’s responsibility to hold congressional and state house elections is not “completely thwarted.”

You can read the full motion here. As we know, the DC court has oral arguments in the case scheduled for November 2, so there’s no way there will be resolution before the start of the filing period, and it may not happen by the deadline. Keep your eye on this, it could be a game changer.