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Voting Rights Act

The end of the voter ID fight

I guess that’s it.

Still the only voter ID anyone should need

After seven long years of litigation, opponents of Texas’ voter ID law say the case is over.

In a court filing on Wednesday, opponents of the law requiring Texas voters to present photo identification to vote told a federal district judge that the case was settled and that they would not pursue any other remedies or changes to the law they first challenged in 2011 as discriminatory against voters of color.

Because neither party in the case asked for rehearing or attempted to kick it up to U.S. Supreme Court, “the substantive merits and remedy phases of this long-standing case are over,” they wrote.

The filing follows the state’s June request to U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider previous findings that the state’s voter ID law was enacted to purposefully discriminate against Hispanic and black voters. That request came two days after the U.S. Supreme Court ruled that Texas lawmakers did not intentionally discriminate when they signed off on congressional and state House maps in 2013 — a decision that Texas argued “cast irremovable doubt” on previous decisions against the voter ID law.

[…]

In Wednesday’s filing, opponents of the law asked the court to dismiss the state’s request because there was nothing left to pursue in the case given the 5th Circuit’s ruling that the changes made to law in SB 5 were “an effective remedy” to the original 2011 law that was deemed legally defective.

They also described Texas’s arguments that “new Supreme Court precedent has somehow changed the standard for discriminatory intent that this Court applied in prior holdings” as “frivolous.” The only remaining issues in the case are fees and costs related to the litigation, according to the plaintiffs.

See here and here for the background. We may still be sparring over legal fees when the 2021 Lege convenes with the task of drawing the next decade’s districts, but that’s not going to affect what anyone has to do to vote. As we’ve seen quite a bit lately, this is going to require a political solution. At the federal level, with a new Congress and a new President, a new Voting Rights Act can be passed. At the state level, the voter ID law can be repealed, though at what point the conditions would apply that would allow for that is unclear, to say the least. But this is where we are and where we’ll need to go.

Same maps, different day

The coda to the SCOTUS redistricting ruling.

The 2018 elections will move forward without any tweaks to Texas’ political maps.

Following the U.S. Supreme Court’s ruling to uphold all but one of the state’s political districts, a three-judge federal panel in San Antonio on Tuesday ordered that the state’s maps should stay in place for this year’s elections despite outstanding issues with House District 90.

The Tarrant County-based district was the sole exception the Supreme Court made in OK’ing the state’s maps last week. That district, which is held by Democratic state Rep. Ramon Romero, was deemed an impermissible racial gerrymander because lawmakers illegally used race as the predominant factor in deciding its boundaries.

It’s likely that opponents of the maps will push for the district to be redrawn, which could affect neighboring Republican-held districts. But as things stand now, the district will only be corrected in time for one election before it likely needs to be redrawn again after the 2020 census.

See here for the background. I don’t even have it in me to make a snarky comment. For seven years of litigation showing clear-cut bad acts to come down to tweaking one safely Democratic district for the 2020 election, it’s a cruel joke. And if the injustice of it all doesn’t motivate you for November, you’re part of the problem. The DMN has more.

The fruit of the poisoned tree

If the discriminatory intent of the Texas redistricting was no biggie, then surely the discriminatory intent of the voter ID law is no biggie too. Right?

Still the only voter ID anyone should need

In a motion filed Wednesday, the Texas attorney general’s office asked U.S. District Judge Nelva Gonzales Ramos of Corpus Christi to reconsider her findings that the state’s voter ID law was enacted to purposefully discriminate against voters of color. An appellate court has already upheld the law, but — in light of the Supreme Court’s ruling — the state is now trying to convince the judge to reverse her findings of discrimination in the voter ID case in order to eliminate the possibility of a return to federal oversight of its election laws.

In the filing, the state argued that the 2011 voter ID law that opponents first challenged as discriminatory has now “changed significantly” and pointed to the 5th Circuit Court of Appeal’s findings that the Legislature “succeeded in its goal” of addressing discriminatory flaws in the voter ID law in 2017.

It cited the Supreme Court’s verdict on the congressional and state House maps as findings that “cast irremovable doubt” on previous decisions that the voter ID law was also crafted with a discriminatory intent.

The state contends that, like in the redistricting case, lawmakers should be extended the “presumption of legislative good faith” for working to replace a law that Ramos ruled disproportionately — and intentionally — burdened voters of color who are less likely to have one of the seven forms of identification that the state required them to show at the polls.

See here for some background. Ken Paxton is a third-class legal mind, but given the turd that SCOTUS laid on us in the redistricting case, he’s got a compelling argument. Unless someone can find a recording of Troy Fraser rubbing his hands together and cackling “This bill is SUPER RACIST, y’all” while the floor debate was going on, I’m not sure there’s any defense. The only solution is going to be a political one. There’s no other choice.

SCOTUS upholds Texas redistricting

Screw this.

Extinguishing the possibility that Texas could be placed back under federal electoral supervision, the U.S. Supreme Court on Monday pushed aside claims that lawmakers intentionally discriminated against voters of color when they enacted the state’s congressional and state House maps.

In a 5-4 vote, the high court threw out a lower court ruling that had found that lawmakers intentionally undercut the voting power of Hispanic and black voters, oftentimes to keep white incumbents in office. The Supreme Court found that the evidence was “plainly insufficient” to prove that the 2013 Legislature acted in “bad faith.”

The Supreme Court also ruled that all but one of the 11 congressional and state House districts that had been flagged as problematic could remain intact. The one exception was Fort Worth-based House District 90, which is occupied by Democratic state Rep. Ramon Romero and was deemed an impermissible racial gerrymander because lawmakers illegally used race as the predominant factor in deciding its boundaries.

The Supreme Court’s ruling, which keeps all but one of the state’s districts in place through the end of the decade, is a major blow to the maps’ challengers — civil rights groups, voters of color and Democratic lawmakers — who since 2011 have been fighting the Republican-controlled Legislature’s post-2010 Census adjustment of district boundaries.

[…]

Joined by the court’s three other liberal justices, Justice Sonia Sotomayor denounced the majority’s opinion as a “disregard of both precedent and fact” in light of the “undeniable proof of intentional discrimination” against voters of color.

“Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will,” Sotomayor wrote. “The fundamental right to vote is too precious to be disregarded in this manner.”

In siding with the state, the Supreme Court tossed out claims of intentional vote dilution in state House districts in Nueces County and Bell County as well as claims that Hispanic voters were “packed” into Dallas County districts to minimize their influence in surrounding districts. The high court also rejected challenges to Congressional District 27 — where the lower court said lawmakers diluted the votes of Hispanics in Nueces County — and Congressional District 35, which the lower court flagged as an impermissible racial gerrymander.

But perhaps most significant on the voting rights front was the Supreme Court’s ruling that the state could be not be held liable for intentional discrimination of Hispanic and black voters.

See here and here for the background. The opinion is here if you have the stomach for it. You sure can accomplish a lot if you close your eyes and wave away evidence. I don’t know what else there is for me to say, so I’ll just refer you to Pema Levy, Ian Millhiser, Martin Longman, and Mark Joseph Stern. What Rick Hasen wrote five years ago sure looks prescient now.

Fifth Circuit upholds voter ID changes

Ugh.

Still the only voter ID anyone should need

Amid efforts to prove Texas’ embattled voter ID law is discriminatory, a federal appeals panel on Friday OK’d state lawmakers’ efforts to rewrite the law last year to address faults previously identified by the courts.

On a 2-1 vote, a three-judge panel of the U.S. 5th Circuit Court of Appeals reversed a lower court’s ruling that tossed out the state’s revisions through Senate Bill 5. The lower court had said the changes did not absolve Texas lawmakers from responsibility for discriminating against voters of color when they crafted one of the nation’s strictest voter ID laws in 2011.

But the Legislature “succeeded in its goal” of addressing flaws in the voter ID law in 2017, Judge Edith Jones wrote in the majority opinion for the divided panel, and the lower court acted prematurely when it “abused its discretion” in ruling to invalidate SB 5.

The 5th Circuit panel’s ruling is a major victory for the state after years of losses in an almost seven-year legal battle over its restrictions on what forms of identification are accepted at the polls.

[…]

Key to the state’s defense was a change in the 2017 law that allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification, but lawmakers also wrote into law that those found to have lied about not possessing the proper photo ID could be charged with a state jail felony.

Arguing before the 5th Circuit in December, attorneys representing the voting and civil rights groups suing the state said the “reasonable impediment” provision was a faulty remedy because of the possibility that voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID.

They also pointed out that the list of permissible IDs remains unchanged under the state’s new ID law: a state driver’s license or ID card, a concealed handgun license, a U.S. passport, a military ID card, a U.S. citizenship certificate or an election identification certificate.

On Friday, the 5th Circuit panel sided with the state’s argument that Ramos’ decision to reject its revisions to the voter ID law was improper because a new law would require a new legal challenge, but the court did note that opponents of the law could still separately challenge SB 5 in the future.

Judge James Graves Jr. employed striking imagery to lay out his dissent to the majority opinion. “A hog in a silk waistcoat is still a hog,” he wrote before explaining that the original voter ID law was an “unconstitutional disenfranchisement of duly qualified voters.”

“SB 5 is merely its adorned alter ego,” he added.

With a loss in hand, opponents could be derailed in their efforts to persuade the courts to place Texas back under federal oversight of its election laws — a process called preclearance.

See here, here, and here for the background, and here for a copy of the opinion. The plaintiffs can and almost certainly will ask for an en banc rehearing, though the partisan makeup of the Fifth Circuit does not inspire confidence. They can also start the whole process over by filing a new lawsuit against SB5. This litigation began in 2011 after the original bill SB14 was passed, and it’s not over yet, so you can get some idea of how much longer this might get dragged out if we go down that path.

As usual, Rick Hasen has a good analysis of the ruling and its effect. The bottom line is that despite two findings by the district court of intentional discrimination, the Fifth Circuit has now said that the technical fixes of SB5, which were enacted under court pressure by the Lege, washes that sin away completely. Ross Ramsey recently wrote that no matter what ultimately happens at SCOTUS with redistricting, the Republicans have already won, because they will get four cycles out of maps that are basically what they drew and may at worst have one cycle with court-mandated “fairer” maps. No matter what happens from here, we’ve been operating under the original voter ID law or something not that far from it. There’s no price to pay for passing a discriminatory law, or potentially for passing discriminatory Congressional and legislative maps. Why wouldn’t any other Republican-controlled legislature do the same, given Texas’ experience?

As such, the only reliable solution going forward is a political one. We need to elect enough people who oppose voter ID to repeal this discriminatory, anti-democratic law. This is of course a long-term solution, but then a new lawsuit against SB5 would have something like a seven or eight year timeline based on the SB14 experience, with no guarantee of success. In the interim, we need to put more effort and resources into ensuring that people have what they need in order to be able to vote. It’s a travesty, but it’s our reality. We have no other choice.

SCOTUS hears the redistricting arguments

It’s in their hands now.

Much of the argument concerned the issue of whether the case was properly before the justices at all.

Last year, a three-judge panel of the Federal District Court for the Western District of Texas, in San Antonio, ruled that a congressional district including Corpus Christi denied Hispanic voters “their opportunity to elect a candidate of their choice.” The district court also rejected a second congressional district stretching from San Antonio to Austin, saying that race had been the primary factor in drawing it.

In a separate decision, the district court found similar flaws in several state legislative districts.

But the court did not issue an injunction compelling the state to do anything, and only instructed Texas officials to promptly advise it about whether they would try to draw new maps.

[…]

The question for the justices, [Allison J. Riggs, a lawyer for the challengers] said, was, “Did the Legislature adopt the interim plan for race-neutral reasons, or did it use the adoption of that interim plan as a mask for the discriminatory intent that had manifested itself just two years ago?”

Later in the argument, she answered her own question. “They wanted to end the litigation,” she said, “by maintaining the discrimination against black and Latino voters, muffling their growing political voice in a state where black and Latino voters’ population is exploding.”

See here for the previous update. I’ll be honest, I’m a little unclear as to what exactly SCOTUS may be ruling on. The DMN has the most concise summary of that:

If the justices side with the state:
The lower court’s ruling could be vacated and Texas’ electoral maps would stay the same until they are next redrawn in 2021.

A victory for the state would also benefit Republican lawmakers, who would start their next redistricting session with more districts that are favorable to Anglo voters, who tend to vote Republican. That would slow the growth of districts with majority minority populations, which tend to vote Democrat, and whose numbers are fueling the state’s population growth.

If the court sides with the map’s challengers:
The case would be sent back to the San Antonio court, which would start hearings on how to redraw new maps that could also be appealed to the Supreme Court. Changing the challenged districts could have a ripple effect on surrounding districts and lead to more Democrats being elected.

A victory for them could spell deeper trouble for Texas. The San Antonio court could consider whether to place the state back under federal supervision for changes made to its election laws and maps. Texas and several other states with a history of discrimination were under “pre-clearance” — a protection under the Voting Rights Act for minorities who were historically disenfranchised — until a Supreme Court ruling in 2013.

If the justices rule it’s out of their jurisdiction:
The Supreme Court could send the case back to San Antonio because — despite the state’s argument that the order is in essence an injunction — the court hasn’t blocked the use of the current maps yet. Then the case could play out in much the same way as if the Supreme Court had sided with maps’ challengers, and the state could again appeal to the Supreme Court if the court formally blocks the maps.

In that latter case, I presume we[‘d go through the motions of getting a final ruling from the lower court, then going back to SCOTUS since surely there would be another appeal. From the way the hearing went it sounds like at least some of the justices think now is not the time for them to get involved, so be prepared for this to not be over yet. Whatever it is they do, they’ll do it by the summertime, so at least we won’t have to wait that long. CNN, NBC, SCOTUSBlog, Justin Levitt, the WaPo, and the Chron have more.

Today is Texas redistricting day at SCOTUS

The Chron sets the table.

The nine justices of the U.S. Supreme Court will take their seats Tuesday morning to hear a case that could remake the political map of Texas.

Hidden in the legalese of “interlocutory injunctions” and “statutory defects” is this simple question for the justices to dissect: Did the Republican-led state Legislature purposely draw its last legislative and congressional boundaries to subvert the voting power of Latino and African-American voters?

The answer, expected by June, could influence the racial and partisan makeup of the state’s political districts, culminating a long, high-stakes legal battle that has the potential to turn Texas a little more blue.

A possible finding of voting rights violations also could force the Lone Star State back under federal supervision for future election disputes, a civil rights remedy associated with the state’s segregationist past. Texas only got removed from federal preclearance requirements in 2013. Restrictions requiring strict federal scrutiny of all elections had been in place since the Voting Rights Act of 1965.

“The Texas case thus could be in a position to break new ground and will be closely watched for that reason,” said legal court analyst Michael Li, writing for the New York University Law School Brennan School of Justice.

See here for the last update. While the Chron story mostly covers familiar ground, it does note that thanks to other cases currently being considered by SCOTUS, the state is probably not going to use the “it was just a partisan matter” defense. Michael Li discusses that in this Q&A he did with the Observer:

What should we know about the other two redistricting cases before the Supreme Court?

In Texas, the claims are about racial fairness, but in the other two cases — in Wisconsin and Maryland — the claims are about partisan gerrymanders.

The Supreme Court has never put partisan gerrymandering out of bounds in the way it has racial gerrymandering, which has left a really big loophole for states to claim they’re only discriminating based on partisanship. It’s become this sort of strange defense you see playing out in states like Texas, where lawmakers essentially argue they’re discriminating against Democrats and not African Americans. That’s because it’s perfectly OK to discriminate against Democrats when you draw the lines. But if [the court] limits partisan gerrymandering, it could shut down the excuse that a lot of places in the South, including Texas, have used.

The two cases being argued on Tuesday are not the Texas maps’ first trip to the Supreme Court. They were also before the Court in 2012, which triggered a bit of a judicial fire drill at the time.

What the state will probably argue is that the current map, which was adopted in 2013, is legal and needs no changes made. Ian Millhiser of ThinkProgress breaks that down.

Texas initially drew its gerrymandered maps in 2011, before the Supreme Court struck down much of the Voting Rights Act. Under the fully armed and operational Act, any new Texas voting law had to be submitted to federal officials in Washington, DC for “preclearance” before it could take effect, and a federal court in DC ultimately concluded that the state’s maps were not legal.

Meanwhile, the 2012 election was drawing closer and closer, and Texas still did not have any valid maps it could use to conduct that election.

With this deadline drawing nigh, a federal district court drew its own maps that Texas could use for 2012, but the Supreme Court vacated those maps. In an ominous statement that plays a starring role in Texas’ Perez brief, the Supreme Court explained that “redistricting is ‘primarily the duty and responsibility of the State.’” The district court’s maps, at least according to the justices, needed to be reconsidered because they may not have shown sufficient deference to state lawmakers.

“A district court,” the Supreme Court concluded, “should take guidance from the State’s recently enacted plan in drafting an interim plan.” Thus, even when state lawmakers draw legally dubious maps for the very purpose of giving some voters more power than others, courts should be reluctant to make sweeping changes to those maps.

In fairness, this was not an especially novel holding. The Court proclaimed in 1975that “reapportionment is primarily the duty and responsibility of the State.” But such a holding takes on chilling implications when a state legislature is actively trying to rig elections. Should courts really defer to lawmakers who are a straight up trying to undercut democracy?

It’s likely that a majority of the Supreme Court’s answer to this question in Perezwill be an emphatic “yes!” and that the Court will effectively allow much of Texas’ gerrymander to endure without any meaningful judicial review at all.

After the Supreme Court’s 2012 decision striking down the district court’s maps, the case went back down to the district court with instructions to try again. By this point, it was late January. Texas still had no valid maps, and a primary election was looming. Candidates had no idea where to campaign. Incumbents did not know who their constituents would be.

The result was a rushed, March 2012 order which laid out interim maps that closely resembled the maps drawn by the state legislature. “This interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case,” the court warned when it handed down the hastily drawn maps. Nevertheless, the court understood “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”

With few good options, the district court allowed several of Texas’ districts to remain unchanged, even though there were serious concerns that those districts were racial gerrymanders.

Flash forward to 2018, and the Perez cases involve several of these unchanged districts that the district court later held to be illegally gerrymandered. But there’s a catch! The Texas legislature, seeing a potential opportunity to shut down this litigation altogether, took the district court’s inadequately scrutinized, rush-job maps, and wrote them into state law in 2013. They now claim that these maps are immune from judicial review because they were drawn by a court.

“There are few things a legislature can do to avoid protracted litigation over its redistricting legislation,” Texas claims in its brief. “But if the nearly inevitable litigation comes to pass, one would have thought there was one reasonably safe course available to bring it to an end—namely, enacting the three-judge court’s remedial redistricting plan as the legislature’s own.”

It’s a stunning, arrogant claim. The only reason why the district court blessed its interim maps is because it felt it had no choice — a deadline was looming, and the Supreme Court left it with little time to act and an order to defer to the state legislature’s maps whenever possible. The districts at issue in Tuesday’s oral argument never received meaningful judicial scrutiny before they were whisked into action as a matter of necessity.

And yet, it is highly likely that a majority of the Court will agree with Texas’ claim that its maps are immune from review. Though the district court struck down portions of the Texas maps (again), the Supreme Court voted along party lines to reinstate those maps for the 2018 election last September.

One way or the other, we ought to have a clearer idea of what is and is not allowed when maps are drawn. State Rep. Eddie Rodriguez and Travis County Tax Assessor Bruce Elfant, in this Statesman op-ed, explain their motivation for pursuing this litigation, and the Trib has more.

Testimony ends in Dallas County “oppressed white voters” trial

It’ll be awhile before we have a verdict.

Testimony ended Thursday in the landmark redistricting case over whether Dallas County discriminates against white voters.

The four-day trial — Ann Harding vs. Dallas County — featured analysis by local and national redistricting experts and video of two raucous county Commissioners Court meetings.

U.S. District Judge Sidney Fitzwater will wade through the evidence and issue a ruling. That could take months because the judge will receive 50-page closing arguments from lawyers on both sides and hear final oral arguments in late May or early June.

The lawsuit, filed in 2015, contends that the electoral boundaries county commissioners developed in 2011 dilute the white vote. Democrats enjoy a 4-1 advantage on the Commissioners Court. The districts are led by three Democrats — John Wiley Price, who is black; Elba Garcia, who is Hispanic; and Theresa Daniel, who is white. County Judge Clay Jenkins, also a Democrat, is white and is elected countywide. Mike Cantrell, also white, is the only Republican on the court.

See here for the background. I don’t really have anything to add to what I wrote before. I can’t imagine this will get anywhere, but we do live in strange times.

White voters sue Dallas County over claims of voter discrimination

I have four things to say about this.

Are white voters in Dallas County being discriminated against?

That question, which might cause some to chuckle, will be answered after a trial starting April 16 that could change the face of the voting rights struggle in America.

Four white residents are suing Dallas County, claiming that the current boundaries of county commissioner districts violate their voting rights. The case is believed to be one of the first in the nation where a group of whites is seeking protection under the Voting Rights Act.

The lawsuit foreshadows a potential turnabout in Texas’ and the nation’s racial politics. As Hispanics, blacks and other minorities close in on making America a country where minorities make up the majority, some whites are attempting to use civil rights laws to protect themselves from what they see as discrimination.

Dallas County, once dominated by white Republicans until demographic shifts paved the way for Democrats, is the ideal testing ground for such a case.

“There will be people who look up and say ‘oh, come on,’ but the facts are clear and it should not matter who is on the short end of the stick,” said Dallas lawyer Dan Morenoff, executive director of the Equal Voting Rights Institute. “The whole point is to assure state and local government can’t rig elections against races they don’t like.”

The white residents are backed by the Equal Voting Rights Institute. They are asking the court that the current Commissioners Court boundaries, approved in 2011, be redrawn to allow white residents to elect the commissioner of their choice.

[…]

Redistricting experts say the plaintiffs will have a hard time prevailing over the county. The Voting Rights Act, in part, protects victims of historical and systemic discrimination. White voters don’t fall in that class. A challenge to the maps on grounds that the white residents’ constitutional rights were violated has already faded.

“That’s a pretty high hurdle to overcome,” said Michael Li, an election law expert and senior counsel for the Brennan Center’s Democracy Program at New York University. “There hasn’t been a history of discrimination against white voters in Dallas County.”

Justin Levitt, associate dean for research at Loyola University in Los Angeles, agreed.

“You have to prove that the government intentionally took action against people because of their race. That is going to be much harder to demonstrate,” he said. “The case is going to turn on whether there is a history of discrimination against Anglos or present-day signs of discrimination.”

[…]

The lawsuit argues that the political clout of white voters has been purposefully diminished. Whites in Dallas County overwhelmingly vote for Republicans, the suit says, while blacks and Hispanics tend to vote for Democrats. The 4-to-1 Democrat-to-Republican ratio is a sign that whites have become disenfranchised, the suit says.

“The plaintiffs’ view is that a map was drawn on the basis of race to make sure a group couldn’t elect the candidate of their choice,” Morenoff said. “We think the law is pretty clear that it’s illegal. We’re making the same arguments that plaintiffs have made in Texas the past few decades. The law protects racial minorities whoever they are.”

But a white majority exists on the Commissioners Court even though Hispanics represent the largest racial group in the county. According to the U.S. Census, Hispanics make up 39 percent of the county population. The county is 33 percent white and 22 percent black.

[County Judge Clay] Jenkins, [Commissioner Theresa] Daniel and [Commissioner Mike] Cantrell are white. Daniel is a Democrat and Cantrell is a Republican. There is one black commissioner, Democrat John Wiley Price, and one Hispanic commissioner, Garcia, a Democrat.

The plaintiffs are arguing that white conservatives were not able to elect their candidate of choice.

Whites make up 48 percent of Dallas County voters, but essentially elect 25 percent (one commissioner) of the court, the lawsuit states.

Many white voters were packed into precincts controlled by Daniel, Price and Garcia. And others had their votes wasted after being packed into Cantrell’s Precinct 2, the lawsuit says.

Lawyers for the county disagreed in a court filing.

“Plaintiffs’ amended complaint fails to allege or demonstrate how the currently elected County Commissioners are not the candidate of choice of Anglo voters,” they wrote. “Even if the five commissioners are the candidates of choice of African-American and Latino voters, that fact does not preclude those Commissioners from also being the candidates of choice of Anglo voters.”

The trial is expected to take four days.

Li, the election law expert who spent 10 years in Dallas as a lawyer for Baker Botts, says redistricting cases like the one in Dallas County could evolve into referendums on partisan gerrymandering. Two such cases are before the U.S. Supreme Court.

“In the future, instead of race-based claims, they may claim that there was partisan gerrymandering,” Li said.

1. Good luck with that.

2. There are only four commissioners per county, plus a County Judge, so the result of one election can have a dramatic change to the partisan ration – you can go from 50-50 to 75-25 overnight, for example. Add in the County Judge and a “balanced” Court will be 60-40 one way or the other. My point here is that there’s only so much precision one can achieve.

3. Also, too: Harris County is at least as Democratic as Dallas is Republican, and at least as non-Anglo as Dallas is. Yet Harris County Commissioners Court has four Anglo Republicans and one African-American Democrat. Commissioners precincts were also redrawn following the 2010 election in which Jack Morman ousted Sylvia Garcia to protect the most vulnerable of the Anglo commissioners. Be careful what you’re wishing for here, Republicans. And yes, there was a lawsuit filed here over that, and the plaintiffs lost. Anyone think these folks in Dallas have a better claim than the plaintiffs in Harris County did?

4. Too bad the Supreme Court kneecapped the Voting Rights Act, huh? Maybe casting this as a partisan gerrymandering claim will help, assuming SCOTUS finds a remedy for that. In which case, again I say to be careful what you ask for, Republicans.

A copy of the lawsuit is here, and the county’s response is here/a>; they are also embedded in the story. As always, I welcome feedback from the lawyers out there.

It’s going to be redistricting time for Texas at SCOTUS soon

Here’s an update.

In their latest brief to the U.S. Supreme Court, the voting and minority rights groups challenging Texas’ political maps painted Republican state lawmakers as “opportunistically inconsistent in their treatment of appearance versus reality.”

Pointing to the lawmakers’ 2013 adoption of a court-drawn map that was meant to be temporary, the groups chronicled the actions as “a ruse,” a “shellgame strategy” and a devious “smokescreen” meant to obscure discriminatory motives behind a previous redistricting plan.

Channeling their anger toward the lower court that found lawmakers intentionally discriminated against voters of color, state attorneys used a February brief to denounce the court’s ruling as one that “defies law and logic,” suffers multiple “legal defects” and “flunks the commonsense test to boot.”

[…]

The legal fight between the state and its legal foes, which include several voters of color, has been churning through the courts since 2011. That was when lawmakers embarked on redrawing the state’s congressional and legislative districts to account for explosive growth, particularly among Hispanic residents, following the 2010 census.

Those maps never took effect because Texas, at the time, was still required to get federal approval of changes to its political maps before using them in elections. A federal court in Washington eventually rejected the boundaries, ruling they violated federal safeguards for voters of color. But by then, a three-judge federal panel in San Antonio had ordered up interim maps for congressional and state House districts to be used for the 2012 elections.

The San Antonio court at the time warned that the interim maps were still subject to revision. But state lawmakers in 2013 adopted those maps as their own, with few tweaks.

That move, the state contends, was a “conciliatory act” in which the Legislature “embraced the court’s maps for the perfectly permissible reason that it wanted to bring the litigation to an end.”

But in their brief filed last week with the high court, attorneys for voters and legislators challenging the maps described the 2013 maneuver in much different terms:

“In the State’s telling, there was a brief, shining moment in 2013 when Texas history reversed course and the Texas Legislature fell all over itself to conform state conduct to a federal court’s provisional observations. The district court rightly saw through the 2013 masquerade.”

As noted before, oral arguments will be on April 24, so gird your loins and make sure children and pets are in safe places. I will remind everyone that there were actually two remedial maps produced by the three-judge panel way back in 2011. The first one, which was based on the previous decade’s pre-cleared-and/or-ruled-VRA-compliant-by-SCOTUS maps, was thrown out by SCOTUS on the grounds that the panel needed to defer to the new maps as drawn by the Lege as their starting point. Which the court did, and which it did without taking into consideration the VRA Section 2 claims on which the plaintiffs subsequently prevailed. As such, claims that the interim maps solved all the problems and should have been the end of the litigation are false. The maps had problems, which the courts ultimately found, and that’s even before we get into the “intent” question.

Anyway. What happens from here is unknown. SCOTUS has had a busy term grappling with redistricting questions, but unlike the partisan-gerrymandering claims from Wisconsin and Maryland, this is old-fashioned racial discrimination/Voting Rights Act stuff. It’s also our last chance to remediate any damages before the next redistricting cycle. It would not be much of a win for the plaintiffs if we never get to have an election under non-discriminatory maps.

SCOTUS will hear oral arguments in the Texas redistricting case in April

On April 24, to be specific, according to Michael Li on Twitter. Both the Congressional and state legislative cases will be consolidated into one for the arguments. That means we should have a ruling by the end of June. See here for some background, and the Brennan Center for pretty much everything you need to know.

Electoral College lawsuit filed

I’m not sure about this.

Saying Texas’ current practice is discriminatory, a group of Hispanic activists and lawyers has sued the state in hopes of blocking it from awarding all of its Electoral College votes to one candidate during presidential elections.

The lawsuit filed in federal court Wednesday calls on Texas to treat voters “in an equal manner” by abolishing that “winner-take-all” approach, which all but two states use. The suit, filed by the League of United Latin American Citizens and a coalition of Texas lawyers, says that approach violates the U.S. Constitution and the 1965 Voting Rights Act. It’s just one of many pending voting rights lawsuits arguing that Texas, which regularly votes Republican, has illegally discriminated against voters of color.

Similar Electoral College lawsuits were also filed Wednesday in Republican-dominated South Carolina and Democratic-leaning Massachusetts and California. The South Carolina suit also alleges a Voting Rights Act violation.

At the suit’s core is the doctrine of “one person, one vote,” rooted in the 14th Amendment. The plaintiffs argue that the winner-take-all system is unconstitutional because Texans who favor losing candidates “effectively had their votes cancelled,” while voters who favor winning candidates see their influence “unconstitutionally [magnified].” The suit also alleges that winner-take-all violates the First Amendment.

[…]

Lawyers have asked the court to declare the winner-take-all approach unconstitutional and set “reasonable deadlines” for state authorities to propose an alternative system.

The winner-take-all method is nearly ubiquitous — only Maine and Nebraska use other systems. If the plaintiffs were to prevail in their cases, the potential impact on presidential elections would be huge. But it’s unclear how far the cases will go.

I mean, if the end goal here is to abolish the Electoral College and install a straight-up popular vote for President, I’m cool with that. There are political efforts underway to achieve this, such as National Popular Vote that I think are both more promising and more broad-based, but it’s been around for awhile and still has a long way to go. If however the goal is to replace the current system with some other kind of proportional Electoral College system, such as the EVs-by-Congressional-district or EVs-as-a-percentage-of-the-state-vote, then count me out. Both of those are too convoluted, and in the Congressional case subject to its own set of shenanigans, and neither to my mind addresses the “one person one vote” complaint in a satisfactory fashion. The problem isn’t that the Electoral College is broken and needs fixing, the problem is that it was a bad and undemocratic idea to begin with. That’s a worthy goal, and one I support.

Lawsuit over how judges are elected statewide goes to trial

Hey, remember that lawsuit that argued that statewide elections of judges was discriminatory against Latinos? The case is being heard in court this week.

El Paso lawyer Carmen Rodriguez and Juanita Valdez-Cox, a community organizer in the Rio Grande Valley, live hundreds of miles from each other, but they share an electoral grievance that could upend the way Texans fill seats on the state’s highest courts.

For years, Rodriguez and Valdez-Cox have noticed that campaigning for the Texas Supreme Court and Court of Criminal Appeals hardly reaches their corners of the state. And it’s left them feeling so neglected and undermined as voters that they decided to the sue Texas over the statewide election system it uses to fill seats on those courts.

“I think every vote should count and should have equal weight as much as possible,” Rodriguez testified in federal court on Monday on the first day of a week-long trial in a case challenging the state’s current election method for the Texas Supreme Court and Court of Criminal Appeals. But those campaigning for those seats hardly make their case to El Paso voters, Rodriguez added, so “they don’t seem to need our vote.”

That sentiment is a key component to a lawsuit filed on behalf of Rodriguez, six other Hispanic voters and Valdez-Cox’s organization, La Union del Pueblo Entero, that alleges the statewide method of electing judges violates the federal Voting Rights Act because it dilutes the voting power of Texas Hispanics and keeps them from electing their preferred candidates.U.S. District Judge Nelva Gonzales Ramos has set aside the rest of the week for the trial during which the plaintiffs’ lawyers will work to convince Ramos that Texas should adopt a single-member approach — similar to those employed by some city councils and school boards — that would carve up districts geographically in a way that could allow for Latino-majority voting districts.

“The courts cannot be the great equalizer of our social fabric when one group — Latinos — are disadvantaged in the election process,” Jose Garza, an attorney representing the voters, said in his opening statement Monday.

Throughout the day, Garza and other attorneys representing the voters suing the state called up individual plaintiffs and election law and history experts to help make their case that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters.

Lawyers for the Texas attorney general’s office, which is representing the state in court, will offer up their own experts later in the week in hopes of dispelling those claims. The state’s lead attorney, Patrick Sweeten, on Monday provided a preview of their arguments when he described their defense and the plaintiffs’ arguments as “two ships passing in the night” because the state’s evidence will show that the plaintiffs cannot meet their legal burden of proving a Section 2 violation.

The state is also expected to call up an expert witness who will argue that single-member districts would “disempower more Hispanic voters than they could potentially empower” because they would only be able to vote for one seat on each high court instead of casting a ballot for all 18 seats.

Plaintiffs’ lawyers spent a large portion of the day arguing that that point would only hold up if you assumed Latinos had the opportunity to elect their preferred candidates to begin with.

See here and here for some background. The plaintiffs survived a motion to dismiss a few months ago. This story was from Tuesday, but I haven’t seen anything more recent so I can’t say how the trial is going. Seems like a heavy lift to me, and there’s an argument to be made that districting the courts would put a ceiling on the number of Latinos that could be elected. You have to figure that sooner or later things will be different for statewide races. That said, I very much understand not wanting to wait, though of course taking a court case to completion will take some number of years. We’re at the start of that process, and we’ll see how it goes. Courthouse News and KUT have more.

SCOTUS will take up Texas redistricting appeal

As the man once said, hold onto your butts.

Further extending a drawn-out legal battle, the U.S. Supreme Court on Friday agreed to hear a case over whether Texas’ congressional and House district boundaries discriminate against voters of color.

The high court’s decision to take the case is a short-term win for Texas’ Republican leaders who, in an effort to preserve the maps in question, had appealed two lower court rulings that invalidated parts of the state’s maps and would have required the district lines to be redrawn to address several voting rights violations.

The Supreme Court’s decision to weigh that appeal will further delay any redrawing efforts even after almost seven years of litigation between state attorneys and minority rights groups that challenged the maps.

[…]

The state’s currents maps, which have been in place for the past three election cycles, were adopted by the Legislature after the three-judge panel in San Antonio in 2012 tweaked boundaries drawn following the 2010 census.

It’s unclear when the court will schedule oral arguments.

See here for the background. We expected this, and Rick Hasen called it the day before it happened. One way or another, we’ll finally get to a resolution, in time for one last election before we start the cycle anew. When the first lawsuits were filed, I figured we’d have new maps in place for 2016, based on how things went after the 2001/2003 redraw. Shows how much I know, or maybe things really are that much different. Strap in and hold on, it’s going to be a consequential term at SCOTUS. Mother Jones, ThinkProgress, the Chron, Hasen again, and the Lone Star Project have more.

SCOTUS to consider Texas redistricting case in January

Batten down the hatches.

The U.S. Supreme Court will meet Jan. 5 to consider whether to take up a case on how Texas draws its congressional and statehouse maps.

In a 5-4 decision split along ideological lines in September, the justices blocked two rulings by a three-judge federal panel in San Antonio. The panel had ordered lawmakers to redraw Texas’ congressional and statehouse maps, which the judges said discriminated against minorities in violation of the Constitution and the Voting Rights Act.

The Supreme Court’s involvement is the latest twist in a six-year legal battle that could have a major impact on Texas’ political landscape, including the Dallas-Fort Worth area.

[…]

The plaintiffs wanted the districts redrawn in time for the 2018 midterm elections. But Attorney General Ken Paxton appealed the decision to the Supreme Court and was granted a stay by Justice Samuel Alito, which torpedoed the plaintiffs’ efforts to expedite new maps.

Since then, both sides have started to prepare for the possibility of a showdown at the Supreme Court. The Mexican American Legislative Caucus, one of the lead plaintiffs in the statehouse suit, hired voting rights expert Pamela Karlan to present their case. Karlan is the co-director of the Supreme Court Litigation Clinic at Stanford Law School.

See here, here, and here for the background. You know the stakes, and how long this godforsaken case has taken to even approach some kind of resolution. There are several other big redistricting and gerrymandering cases coming to SCOTUS soon as well, so we could be in for a world of changes, or a world where basically nothing changes. As the man once said, hold onto your butts.

Voter ID back before the Fifth Circuit

And the worst judge on the Fifth Circuit does her thing.

Still the only voter ID anyone should need

In Texas’ bid to keep its voter identification law intact, it was its legal foes — lawyers representing voting and civil rights groups and individual voters of color — who faced a tougher line of questioning Tuesday before a federal appellate court.

In light of recent revisions to the state’s voter ID law, two judges on the three-judge panel of the U.S. 5th Circuit Court of Appeals raised questions about claims that lawmakers intentionally discriminated against voters of color when they passed rules on which photo IDs can be presented at the polls. That intentional discrimination claim, which a lower court affirmed this year, is key to the case over the state voter ID restrictions.

“If there is nothing that says we are trying to advantage white voters … isn’t that proof that there wasn’t discriminatory intent?” Judge Edith Jones, a Reagan appointee, said of the plaintiffs’ lack of a smoking gun to prove purposeful discrimination by lawmakers, despite thousands of pages of memos and transcripts of debates over the voter ID requirements.

[…]

Texas lawmakers passed Senate Bill 5, which mostly followed the lead of temporary voter ID rules Ramos put in place for the 2016 elections in an effort to ease the state’s requirements.

Key to the state’s defense: The new law allows Texans without photo ID to vote if they present alternate forms of ID and sign affidavits swearing a “reasonable impediment” kept them from obtaining the proper ID. Those voters could present documents such as utility bills, bank statements or paychecks to confirm their identification. Those found to have lied about not possessing the proper photo ID could be charged with a state jail felony, which carries a penalty of 180 days to two years in jail.

That revision “completely changes the nature of the law,” Texas Solicitor General Scott Keller told the judges on Tuesday, arguing the appellate court should dismiss Ramos’ August decision to toss that bill out, too. Ramos said SB 5 didn’t clear Texas lawmakers of discriminating against Hispanic and black voters when they passed the original law.

Attorneys representing the voting and civil rights groups suing the state asserted that the “reasonable impediment” provision was a faulty remedy to issues with the original law.

Voting “under the express threat of going to jail” would have a “chilling effect” on voters without photo ID who are more likely to be people of color, said Janai Nelson, an attorney with the NAACP Legal Defense and Educational Fund.

“What one hand gives, the other taketh away,” Nelson said of “reasonable impediment” addition.

See here for the long story. This is all about whether the law was intentionally discriminatory, in which case it would be thrown out in its entirity, or if the fix passed by the Lege remediates all that. This is going to go to SCOTUS, likely with an en banc stop along the way, so whatever happens here is not the last word. Some day this will all be over.

State has not appealed the voting rights case on language interpreters

Interesting.

Texas has spent years defending its voting laws in court, regularly appealing rulings that found state lawmakers violated the rights of their voters. So when a federal appellate court in August ruled against the state’s restrictions on language interpreters at the ballot box, it was easy to assume an appeal would follow.

But more than three months later, Texas appears to be conceding the case.

“We have not heard anything from Texas,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program, who is representing the plaintiffs in the case. “It appears that they are not appealing.”

At issue in the case was an obscure provision of the Texas Election Code that required interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

In its August ruling, a three-judge panel of the U.S. 5th Circuit Court of Appeals affirmed a lower court’s finding that Texas ran afoul of the federal Voting Rights Act by restricting the interpretation assistance that English-limited voters may receive and that the law should be struck down.

The appellate court found that Texas’ “limitation” on a voter’s choice “impermissibly narrows” rights guaranteed by a lesser-known section of the Voting Rights Act under which a voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote in August. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

The Texas attorney general’s office, which is representing the state in court, for weeks has been unable to confirm whether its lawyers are appealing the ruling or letting stand the lower court ruling.

“At this time, we cannot confirm or deny any filings sent to the Supreme Court,” Kayleigh Lovvorn, a spokeswoman for the AG’s office, said last week. Instead, she pointed the Tribune to a link to the 5th Circuit’s August ruling on a free, online courts database.

But two weeks past a deadline to appeal to the U.S. Supreme Court, the clerk’s office for the high court has not received a filing for the case. A clerk for the 5th Circuit confirmed the case is closed at the appellate court, and no recent filings appear on the case’s docket at the lower district court where the case originated.

See here for the last update. I don’t know if this means that no further appeals are possible or if it just means that it’s too late for the current SCOTUS term. I also have no idea why the AG’s office has not pursued this. Whatever the merits of an appeal by them may be, it’s not in Ken Paxton or Greg Abbott’s nature to let something go. Whatever the reason, I’m happy with the outcome.

Paxton officially appeals redistricting ruling to SCOTUS, part 2

The state House version.

Attorney General Ken Paxton on Friday asked the U.S. Supreme Court to reverse a lower court ruling that ordered nine of Texas’ statehouse districts redrawn after being found discriminatory.

In August, a three-judge panel in a federal district court in San Antonio ruled that parts of Texas’ statehouse maps were discriminatory and ordered nine districts in four counties, including Dallas and Tarrant, redrawn. Paxton appealed that decision to the Supreme Court and had the lower court’s ruling blocked in September.

Now, Paxton is asking the Supreme Court to reverse the lower court’s ruling and settle the six-year legal battle.

[…]

Paxton’s move follows a similar request on Texas’ congressional maps earlier this month. In August, the three-judge panel in San Antonio invalidated two congressional districts, Lloyd Doggett’s in Central Texas and Blake Farenthold’s in Corpus Christi, and ordered them redrawn. But after an appeal from Paxton, the Supreme Court blocked the lower court’s ruling. Paxton has also requested that order be reversed.

See here for the background. Not much more to this – we knew it was coming, and here it is. Some day we’ll get a resolution.

Paxton wants voter ID lawsuit to be over

I can think of one way he can make that happen. That’s not what he’s asking for, alas.

Still the only voter ID anyone should need

The fight over the state’s embattled voter ID laws should be over, Texas Attorney General Ken Paxton argued in a new court document filed late Tuesday.

Paxton, as expected, filed a brief with the U.S. Court of Appeals calling for the judges to end a challenge to the state’s new voter ID law for good. In his 101-page document, the Republican argued that because the state has already added new exceptions to the law to allow people who have a reasonable-impediment to getting an ID to still vote, the case should be officially concluded.

“This case should be over,” Paxton’s brief states.

[…]

[Judge Nelva] Gonzales Ramos ruled that forcing people to sign an affidavit under penalties of perjury could have a chilling effect on a voter. The supposed fix to the voter ID law, she ruled, merely traded one obstacle for another.

While the court battle continues, the courts have already ruled that in November the state’s voter ID requirements can be in effect, but still allow people to vote who can show the reasonable impediment – essentially the same as the revamped voter ID law, which does not go into effect until 2018.

See here, here, and here for the background. Paxton’s press release, with a link to the brief, is here. This is basically the crux of the case here: sure (the state argues), the original law may have had a few teensy problems, but we totally cleaned that up this session, so there’s no need for further action. There’s especially no need to ponder if the Lege had any discriminatory intent when it passed that first bill. All I can say at this point is it won’t be quick before we get a final answer.

No expedited appeal of voter ID

There’s no speeding this up.

Still the only voter ID anyone should need

A federal appeals court Tuesday declined to have all 14 judges participate in the appeal over the Texas voter ID law — a decision that will keep the issue unresolved heading into the 2018 elections, one judge said.

Civil rights groups, Democrats and minority voters who challenged the voter ID law as discriminatory had asked for the entire court to hear the appeal as a way to speed the case toward resolution.

The 10-4 ruling by the 5th U.S. Circuit Court of Appeals, however, means the appeal will be heard by the customary three-judge panel.

Writing in dissent, Justice Jerry Smith noted that the losing side will probably ask the entire court to review the panel’s decision in what is known as “en banc” consideration — a path the 5th Circuit Court took at an earlier stage of the case that, if taken again, would make it “impossible for a decision to be issued before some, if not all, of the 2018 elections are history,” he said.

“The lopsided vote to deny en banc hearing shows that the court has little appetite for disposing of this important case in advance of the beginning of the 2018 election cycle,” Smith wrote.

“The elephant in the room is Texas’s 2018 election schedule, which includes statewide primaries on March 6 (with early voting beginning February 20), municipal elections May 5 (early voting April 22), primary runoffs May 22 (early voting May 14), and the general election November 6 (early voting October 22),” Smith wrote.

See here for the background. The idea is that if the appeal is heard by the usual three-judge panel, whoever loses is going to ask for an en banc review anyway, so why not skip ahead to that? That’s not what we’re going to get, so the best we can hope for is a sense of urgency from everyone along the way. Oral arguments are set for the first week of December, and after that we’ll have to do a lot of waiting. Rick Hasen has more.

Pasadena City Council approves settlement in redistricting case

It’s over.

The Pasadena City Council voted unanimously Tuesday to approve a $1.1 million settlement agreement of a lawsuit challenging a city voting plan that a federal judge found diluted Latino voting influence.

Councilman Cody Ray Wheeler said that after four years of litigation and $3.5 million in legal fees he was glad to see the appeal come to an end.

“It all started out as a power grab that has now run its course,” Wheeler said. “In addition to the financial hit, the lawsuit gave the city a black eye in the national spotlight. It cost us progress and it cost us time.”

Councilman Phil Cayten said he would vote to end the lawsuit to save money even though he thought the city could have prevailed on appeal.

“I think the three more conservative judges of the appeal court would rule in favor of the City of Pasadena,” said Cayten, who apologized to constituents who favored continuing the appeal. “Let me just say that I believe in my heart that the City of Pasadena did not violate the Voting Rights Act or adopt a discriminatory election system.”

The settlement, recommended by new Mayor Jeff Wagner, calls for the city to pay for the plaintiffs’ legal fees and court costs, and to drop its appeal of U.S. District Judge Lee H. Rosenthal’s ruling regarding the 2013 council election system.

See here for the background. One of the consequences of this is that Pasadena is will be put under preclearance for six years, meaning that any changes they make to district lines or other election procedures will have to be approved before they can be implemented. The Trib explores this aspect of the settlement.

The local voting rights squabble had caught the attention of voting rights advocates and legal observers nationwide as some looked to it as a possible test case of whether the Voting Rights Act still serves as a safeguard for voters of color. The local voting rights squabble had caught the attention of voting rights advocates and legal observers nationwide as some looked to it as a possible test case of whether the Voting Rights Act still serves as a safeguard for voters of color.

As things stand now, the dispute won’t set broader precedent across Texas or beyond state lines. But in a state embroiled in court-determined voting rights violations on several fronts, the federal guardianship of Pasadena’s elections is meaningful, particularly following the U.S. Supreme Court’s 2013 finding that conditions for voters of color had “dramatically improved.”

“I think it’s significant that in 2017 we have a trial court finding of intentional racial discrimination by a city in Texas and that the drastic remedy of preclearance has been successfully imposed,” said Rick Hasen, a professor at the University of California, Irvine’s law school who specializes in election law. “The Pasadena ruling indicates that in some places racial discrimination in voting is very much a thing of the present.”

[…]

Rosenthal’s ruling was decisive for voting rights litigation playing out after that ruling, and the city’s move to drop its appeal and let the ruling stand sets up the possibility that Pasadena’s voting rights fight could play an outsized role in other court battles.

In 2013, the Supreme Court left open the possibility that political jurisdictions could be placed back under preclearance — through the Voting Rights Act’s “bail-in” provision — if they committed new discriminatory actions. Rosenthal set a possible standard that other courts can look to in deciding whether to bail in other jurisdictions, legal experts observed.

“It’s one more black mark against Texas” that could help in other voting rights litigation, said Richard Murray, a political science professor at the University of Houston who has studied voting rights cases for decades.

Pasadena’s vote to settle the case is likely to disappoint state leaders who had already filed an amicus brief in support of the city’s appeal that warned of “unwarranted federal intrusion.” State attorneys had deemed Rosenthal’s preclearance ruling improper because it was imposed for a single incident of discrimination instead of pervasive and rampant discrimination.

See here for more on that. I don’t know what if any precedent Pasadena will set, but I’d rather have this outcome going forward than the alternative.

Pasadena will settle voting rights case

Excellent news.

Pasadena Mayor Jeff Wagner on Friday asked the City Council to settle a voting rights lawsuit that led to national portrayals of the Houston suburb as an example of efforts to suppress Latino voting rights.

The proposed settlement with Latino residents who sued the city in 2014 over a new City Council district system calls for the city to pay $900,000 for the plaintiffs’ legal fees and $197,341 for court costs. The item will be on Tuesday’s City Council agenda.

“While I strongly believe that the city did not violate the Voting Rights Act or adopt a discriminatory election system,” Wagner said in a statement, “I think it’s in the best interest of the city to get this suit behind us.”

[…]

Approval of the settlement would end the city’s appeal of Rosenthal’s January ruling that the new council system intentionally diluted Latino voting strength. Voters approved the new system, which added two at-large council positions and removed two district seats, in a 2013 charter change election initiated by the former mayor.

Rosenthal ordered the city to use the previous system of eight district positions in the city elections last May. The city has paid more than $2 million to attorneys for the trial and appeal.

See here, here, and here for the background. This was a big decision to make – Pasadena could possibly have prevailed in the lawsuit, in which case they would not have owed the plaintiffs’ attorneys or the courts any money. That came at significant risk, as they would have had to spend a lot more on their own attorneys to see this all the way through, and would have owed a lot more if they had lost in the end. And then there was the whole matter of justice, which didn’t mean anything to the last Mayor but which thankfully seems to mean something to this one. All in all, this was very much the right thing to do. Council still has to approve it, but that should not be a problem. Well done, Mayor Wagner. Rick Hasen has more.

SCOTUS puts new maps on hold

Ugh.

The U.S. Supreme Court has dealt a serious setback to those hoping Texas would see new congressional and House district maps ahead of the 2018 elections.

In separate orders issued Tuesday, the high court blocked two lower court rulings that invalidated parts of those maps where lawmakers were found to have discriminated against voters of color. The justices’ 5-4 decisions stay the rulings — which would have required new maps — as they take up an appeal from Texas Attorney General Ken Paxton.

Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from the majority opinion.

[…]

The state argued in a legal brief that if the Supreme Court allowed the redrawing of the state’s proposed maps to move forward ahead of the election, the court risked throwing “the Texas election deadlines into chaos for the second time this decade.”

Election administrators have said they need clarity on district boundaries by October to meet timelines to prepare and send out voter registration certificates and avoid electoral delays.

Minority rights groups suing the state rebutted those claims, arguing that “the right to legal districts prevails” when choosing between delaying electoral deadlines and addressing “voters’ ongoing harm” under the current maps.

In siding with the state, the high court made it more likely that Texas will use its current maps in the upcoming elections. The high court could also choose to delay the March primary elections. Its decision is likely months away.

See here and here for the background. At this point, we’re either going to get the same maps as before for 2018, or we’re going to have a (possibly much) later primary. I suspect the former is more likely, which shows the power of having Section 5 (preclearance) of the Voting Rights Act versus not having it: Even if SCOTUS ultimately agrees with the lower court, the state will have gotten to use these illegal maps in four out of the five elections from the 2011 redistricting cycle. The consequences for breaking the law will be next to nothing. Under those circumstances, who wouldn’t take advantage?

The plaintiffs are keeping a stiff upper lip:

“I can’t say that I am pleased with this. I can’t say that I am surprised either,” said Jose Garza, counsel to the Mexican American Legislative Caucus, the lead plaintiff in the lawsuit. “At the end of the day it may all work out. Maybe it’s better to have this discriminatory plan in front of the court and have the state of Texas try to defend it sooner rather than later.”

[…]

Chad Dunn, the Texas Democratic Party’s general counsel, said he believes the evidence of discriminatory intent is so strong, the Supreme Court will agree.

“Getting a final resolution to this matter, that has essentially been pending since 2011, is a step in the right direction,” he said.

I hope you’re right, but it’s a little hard to feel positive about it right now.

ThinkProgress points out the elephant in the room:

It is likely that, if Senate Republicans had not held a seat on the Supreme Court open for more than a year until a Republican president could fill it, that this stay would not have been granted, and the 2018 election would be run under different maps.

It took that fifth vote on SCOTUS for this to happen. Let that sink in for a minute. Eyes on the prize, y’all. Rick Hasen, the Lone Star Project, the DMN, Mother Jones, Daily Kos, Michael Li, the Current, and the Observer have more.

Plaintiffs ask SCOTUS to back down in redistricting fight

This week’s update:

The challengers told the justices that the Supreme Court lacks the power to review the state’s request because there is nothing to put on hold: The lower court has neither blocked the state’s current redistricting plan nor entered any orders to remedy the violations it found. Instead, the challengers emphasized, the lower court simply directed the two sides to show up for a hearing today to come up with a new plan. If the lower court had held the hearing and then entered an order, the challengers explained, Texas could have asked the Supreme Court to step in – but it cannot do so now.

The challengers also dispute any suggestion that if the justices do not intervene now, the district court might impose its own map, which the state will not have time to appeal before the October 1 deadline by which the congressional maps must be in place for next year’s elections. Any “deadline” is purely self-imposed, they say: “This alleged ‘deadline’ is simply the date that Texas claims is required to permit local officials two months’ time to coordinate with third-party vendors to print and mail voter registration certificate cards.” And in any event, they add, there is no reason to believe that the court would both decide to review the dispute and reverse the lower court’s judgment – a key criterion in deciding whether to put a lower court’s ruling on hold. The challengers conclude by pleading with the court not to “countenance Texas’s attempts to introduce further delay and multiply the proceedings in this Court in an attempt to run out the clock.”

See here for the background, and here for the plaintiffs’ filing. Plaintiffs also went and filed some proposed remedial maps, which is what we would have been talking about in this case had Justice Alito not called a timeout. Michael Li has links to those maps. There was also supposed to be a response to the same ruling from the State House case as well, but I have not seen any reporting on it. In any event, the expectation seems to be that a ruling from the full Court will come next week or so. Let’s hope we can get this show on the road. The Statesman and KUHF have more.

Fifth Circuit stays voter ID ruling

Ugh.

Still the only voter ID anyone should need

The state of Texas can use its revised voter ID measure for the upcoming November elections, a divided federal appeals court ruled on Tuesday.

The 2-1 decision, first reported by Politico Tuesday night, came from a panel of three federal judges on the Fifth Circuit Court of Appeals in New Orleans — and it marks the latest in a series of winding legal battles on whether the state has intentionally discriminated against black and Latino voters through its original voter ID law passed in 2011

[…]

In a joint order Tuesday, Judges Jerry Smith and Jennifer Elrod wrote that Texas “has made a strong showing that it is likely to succeed on the merits,” and added that the state has also “made a strong showing that this reasonable-impediment procedure remedies plaintiffs’ alleged harm and thus forecloses plaintiffs’ injunctive relief.”

The dissenting judge on the panel, Judge James Graves Jr., said it was still uncertain whether Texas would succeed — and pointed to the court’s ruling last year that a North Carolina voter ID law had been propelled by race and was never properly fixed.

See here, here, and here for the background, and here for a copy of the order. Rick Hasen explains where we stand now:

Given how each judge voted in the en banc ruling on the last round of the voter id case, nothing here is a surprise.

This is a ruling just by a motions panel; a separate merits panel will review the case in short order (the motions panel expedited consideration of the case).

There is still a long road ahead. The last time this went through it went en banc to the full 5th Circuit and took a while—so the status quo in the interim matters perhaps for how the 2018 elections will be conducted.

Plaintiffs could try to appeal this stay order to the Supreme Court, where they would probably face a tough audience, with perhaps Justice Kennedy in play.

That’s really what it comes down to, the 2018 election and what voter ID rules are in place. Look how long it took us to get to this point. All we can do is keep moving, there’s still more to be done. ThinkProgress and the Chron have more.

UPDATE: Oral arguments are set for the first week in December.

Trump’s Justice Department goes all in on voter ID

Despicable, but what did you expect?

Still the only voter ID anyone should need

Continuing a dramatic reversal on voting rights under President Donald Trump, the U.S. Department of Justice is asking a federal appeals court to allow Texas to enforce a photo voter identification law that a lower court found discriminatory.

In a filing Thursday, the Justice Department asked the U.S. 5th Circuit Court of Appeals to block a lower court ruling that the state’s new voter identification law — Senate Bill 5, enacted in this year — failed to fix intentional discrimination against minority voters found in a previous strict ID law, enacted in 2011.

[…]

Siding with Texas, the Justice Department says in its filing that the state has a “strong likelihood” of successfully arguing that SB 5 fixes discrimination in the old law. Allowing SB 5 to take effect will “avoid confusion among voters and election officials,” Thursday’s brief states.

The brief does not mention a key piece of Ramos’ rulings throughout the case: that lawmakers intentionally discriminated against Latino and black voters in passing its 2011 ID law. Findings of intentional discrimination typically allow for more sweeping remedies in court.

See here and here for the background. As we know, the Obama Justice Department was strongly opposed to this law, but Justice did a heel turn back in July under the new management. I note that like the AG’s office they decline to address the big honking klaxon in the room, that the 2011 law was enacted with discriminatory intent, which isn’t something that can be easily fixed with minor legislative tweaks. Seems like you have to really lean into the denial to make that case. Which doesn’t mean that it won’t work, just that it shouldn’t. It’s back to the Fifth Circuit for now.

UPDATE: And now we know that a three-judge panel at the Fifth Circuit has bought the argument and stayed Judge Ramos’ ruling pending the appeal. I was already heading to bed when that news broke. I’ll have a post about this tomorrow.

State House map paused as well

Not a surprise, given the previous order.

A lower court ruling that invalidated parts of the Texas House state map has been temporarily blocked by the U.S. Supreme Court.

Responding swiftly to an appeal by Texas Attorney General Ken Paxton, Justice Samuel Alito on Thursday signed an order to put on hold a three-judge panel’s unanimous ruling that nine Texas legislative districts needed to be redrawn because lawmakers intentionally discriminated against minorities in crafting them. Alito directed the minority rights groups suing the state to file a response to the state’s appeal by Sept. 7.

The lower court’s ruling could affect nine House districts across Dallas, Nueces, Bell and Tarrant counties. But adjusting those boundaries could have a ripple effect on neighboring districts.

The move comes days after Alito also temporarily put on hold a lower court ruling that invalidated two of Texas’ 36 congressional districts and instructed the minority rights group suing the state to file a response to the state’s appeal of that ruling. Responses from the state’s legal foes on that map are due Tuesday.

See here for the background. We are in wait-and-see mode right now. The same variables – which maps do we use, and when will the primaries be – remain in question. If we don’t have a definitive answer to #1 by the end of October, the answer to #2 will not be “March”. Stay tuned.

SCOTUS puts a pause on the Congressional redistricting ruling

Hopefully, just a temporary one.

The U.S. Supreme Court on Monday put on hold a lower court ruling that invalidated two of Texas’ 36 congressional districts.

In an order signed by Justice Samuel Alito, the high court indicated it wanted to hear from the minority groups suing the state before the state’s appeal of that ruling moves forward. The high court ordered the state’s legal foes to file a response by Sept. 5 to the state’s efforts to keep congressional district boundaries intact for the 2018 elections.

[…]

Texas and the minority rights groups suing the state were scheduled to return to court in San Antonio on Sept. 5 to fight over a new map. On Monday, the San Antonio three-judge panel advised that the Supreme Court’s order did not prohibit the state and minority groups from “voluntarily exchanging” proposed fixes. A clerk indicated the court would confirm on Tuesday whether the hearing would move forward.

Separately, Texas is defending its state House map, which the same San Antonio panel partially invalidated last week because of intentional discrimination behind the crafting of several legislative districts.

The court had indicated that lawmakers should be prepared to also meet on Sept. 6 to consider changes to the state House map. But Paxton also plans to appeal that ruling, which said nine districts must be redrawn.

See here, here, and here for some background. Assuming those hearings do go forward, I’ll be very interested to see what the state brings to them. Their contention is that the 2013 maps were just fine, so it might undermine that position to propose an alternative, even if under the gun. The plaintiffs have already put forward a variety of maps, it’s more a matter of what they narrow it all down to for them. As for the SCOTUS order, Rick Hasen says not to read too much into it, so I will continue to worry about other thing instead. Stay tuned.

Will we have maps in time for March primaries?

Maybe. It’s up to the courts.

State officials insisted Friday they expect to stop the court challenges on appeal, and reverse Texas’ losing streak on the voting-rights lawsuits, legal experts predicted Texas could end up back under federal supervisions of its elections rules if the appeals fail.

In short, the court fight is shaping up as a political game of chicken, with significant consequences no matter how it turns out.

“In both of the cases where there are new decisions, the courts have ruled that Texas has purposefully maintained ‘intentional discrimination’ in the way it drew its maps,” said Michael Li, an expert on Texas redistricting who is senior counsel with the Brennan Center for Justice at New York University.

“That’s an important finding that could result in Texas being placed back under pre-clearance coverage. Based on that, there may be a good chance that could happen.”

[…]

On Friday, Paxton asked the Supreme Court to overturn the lower-court decision on Texas’ congressional maps. “We are confident that the Supreme Court will allow Texas to continue to use the maps used in the last three election cycles,” he said.

Even so, until that appeal is decided, “we don’t expect or anticipate any delay in the Texas election schedule,” said Marc Rylander, Paxton’s communications director.

Li and other legal experts are not so sure.

First, an appeal to the U.S. Supreme Court to overturn Thursday’s ruling by the three-judge panel will almost certainly not be decided until after the filing period in November and December for House seats is over.

And if appellate court rulings in other cases go against the state, the schedule could be upended by court orders to redraw political boundaries for candidates running in those elections. And any boundary changes to benefit blacks and Hispanics could mean gains for Democrats, who those groups traditionally vote for.

“There’s a good chance that, given the way these cases stand with the courts, that the primary election schedule could be affected,” Li said.

The state had previously announced its intention to appeal the Congressional map; you can see a copy of their brief here. I presume an appeal of the State House ruling will ensue. As far as next year’s primaries go, basically one of two things will happen. Either SCOTUS will step in and say that the current maps will remain in place until the appeals process has played out, or it won’t. In that case, new maps need to be drawn. The court will have hearings right after Labor Day to determine a schedule for hearings and whatnot in the event there is no halt from SCOTUS and Greg Abbott declines to call a special session and have the Lege draw compliant maps. Whether it’s the court (most likely) or the Lege, it needs to be done by roughly the end of October so election officials can provide maps and files to county party chairs and interested candidates in time for the normal November-December filing period. There are people who are going to make run/don’t run decisions based on what those maps look like. There’s a decent chance we wind up with later primaries next year – perhaps May, as we had in 2012 – but it’s not certain yet. We should be in a better position to know by the end of the first week of September.

Texas appeals voter ID ruling

On to the next phase.

Still the only voter ID anyone should need

As promised, Attorney General Ken Paxton appealed what he called an “outrageous” federal court decision tossing out the state’s new voter ID law.

In a 25-page filing to the U.S. Court of Appeals for the Fifth Circuit Friday, the Republican attorney general argued the state complied with the court’s call to fix to the state’s voter ID law, which the court found to be discriminatory. But the a U.S. district court judge out of Corpus Christi on Wednesday struck down the law anyway, issuing an injunction permanently barring implementation of the law.

Texas lawmakers passed Senate Bill 5 this year as a remedy after the state’s last voter ID law got tied up in the courts and caused last-minute procedures for people to vote in the 2018 election and a directive lawmakers fix the law this year.

“Texas complied with all the changes to the voter ID law requested by the 5th Circuit, which should reverse the district court’s misguided ruling,” Paxton said in a statement. “Voter ID guarantees to Texas voters the opportunity to cast an in-person ballot and protects the integrity of our elections.”

See here for the background, and here for the press release and filings from the AG’s office. Paxton is also asking the district court for a stay on the ruling pending appeal. I’m sure that won’t be granted, but it’s possible the Fifth Circuit could do that. In the meantime, there’s the question about putting Texas back under preclearance, which could be a game changer.

Kristen Clarke, the president and executive director of the Lawyers’ Committee for Civil Rights Under Law, one of several groups challenging the law, wrote in an email that Wednesday’s ruling was especially powerful because Ramos did not even attempt to craft a remedial solution, such as a softened ID requirement. Recognizing the overwhelming taint of racial animus, Ramos simply struck the whole thing down. “Judge Ramos’ decision,” Clarke explained, “recognizes that a state cannot escape the consequences of its pernicious conduct without completely eliminating all vestiges of discrimination.” Put differently, Texas is effectively barred from imposing new voter ID rules for the foreseeable future.

[…]

Of course, the Supreme Court’s conservative majority could always intervene and prevent Texas from falling under preclearance by reversing Ramos. But such a decision would contradict the court’s own reasoning in Shelby County. Writing for the court, Chief Justice John Roberts explained that Congress’ preclearance formula was unconstitutional because it was obsolete, chiefly because it relied on old historical patterns rather than contemporary evidence. Ramos, in contrast, has now spent more than three years collecting and analyzing evidence that the Texas legislature purposely suppressed minorities’ right to vote. Her first 147-page opinion overflows with facts, statements, and data establishing that the Texas legislature intentionally discriminated against black and Latino voters—not only in the past, but also this decade, starting in 2011. Her follow-up opinions added further proof that the state is systematically suppressing minority votes.

If Roberts rejects Ramos’ judgment, he will have essentially acknowledged that Shelby County’s rationale was pure pretext. In his majority opinion he demanded evidence that racism is still alive in Southern statehouses; now he has it.

I wouldn’t put it past Justice Roberts to overrule Judge Ramos, but he will have to work for it. Remember, this is not the only possible cause for a return to preclearance. And also remember, preclearance doesn’t necessarily mean the Justice Department gets to be the arbiter of legality. The court could give that responsibility to the DC Circuit Court, which you may recall denied preclearance to both the voter ID law and the redistricting plans back in 2011. There’s a real chance the state has put itself in a box, one of its own making. Any restrictions that do get imposed will have been richly earned. The Observer has more.

Court throws out State House map

Once more, with feeling.

Parts of the Texas House map must be redrawn ahead of the 2018 elections because lawmakers intentionally discriminated against minorities in crafting several legislative districts, federal judges ruled on Thursday.

A three-judge panel in San Antonio unanimously ruled that Texas must address violations that could affect the configuration of House districts in four counties, where lawmakers diluted the strength of voters of color. In some cases, the court found mapdrawers intentionally undercut minority voting power “to ensure Anglo control” of legislative districts.

These are the nine districts the court flagged:

  • Dallas County’s HD 103, represented by Democrat Rafael Anchia, HD 104, represented by Democrat Roberto Alonzo and HD 105, represented by Republican Rodney Anderson
  • Nueces County’s HD 32, represented by Republican Todd Hunter, and HD 34, represented by Democrat Abel Herrero
  • Bell County’s HD 54, represented by Republican Scott Cosper, and HD 55, represented by Republican Hugh Shine
  • Tarrant County’s HD 90, represented by Democrat Ramon Romero, and HD 93 represented by Matt Krause.

Adjusting those boundaries could have a ripple effect on other races.

[…]

In both the congressional and state House rulings, the court ordered Attorney General Ken Paxton to signal whether the Legislature would take up redistricting to fix violations in the maps.

But so far, state leaders have signaled they have no appetite to call lawmakers back to Austin over mapmaking. Instead, Texas is looking to the U.S. Supreme Court to keep its political boundaries intact.

“The judges held that maps they themselves adopted violate the law,” Paxton said in a Thursday statement. “Needless to say, we will appeal.”

Meanwhile, the state and the parties that sued over the congressional districts are scheduled to return to court on Sept. 5 to begin redrawing the congressional map. In its Thursday ruling, the court indicated they should be prepared to also meet on Sept. 6 to consider changes to the state House map.

“Today’s ruling once again found that Texas racially gerrymandered its voting districts and used Latino voters as pawns in doing so,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund, who is representing plaintiffs in the case. “With the 2018 election cycle fast approaching, it’s time for Texas to stop discriminating against Latino voters and agree to a remedy that will provide equal opportunity to all.”

It was just over a week ago that the same court invalidated the Congressional map, also calling it intentionally discriminatory. Add in the voter ID ruling and you’ve got three such judgments in a span of eight days; you can also toss in the ruling on interpreters for a four-game losing streak for the state. Don’t forget the Pasadena case, too – it’s not the state, but it is another intentional-discrimination opinion. Maybe this will all add up to enough to convince Chief Justice Roberts to change his mind about the state of voting rights and the need to protect communities of color.

Or not. I wouldn’t hold my breath. Be that as it may, this ruling could have an effect on the effort by wingnuts to oust House Speaker Joe Straus. RG Ratcliffe explains.

The court found that in Nueces County, the district maps discriminated in the placement of minority voters in a way that favored the re-election of Representative Todd Hunter, a key Straus Republican ally and chairman of the House committee that sets bills for debate on the daily calendar. To make his district safe, the court said Hispanic voters were packed into the district of Representative Abel Herrero, a Democrat. Redrawing the districts won’t automatically guarantee Hunter’s defeat, but it will make it more difficult for him to win re-election.

The court also ruled that the Legislature intentionally split a minority community in Killeen to guarantee the election of two white Republicans in Districts 54 and 55, Scott Cosper of Killeen and Hugh Shine of Temple. Both have backed Straus in the past. Putting the minority community in Killeen back together probably endangers Cosper’s re-election, and may put a Democrat in that rural district. Either way, this likely is a wash in the politics of electing the next speaker.

In Dallas and Tarrant counties, the court ruling likely would help Straus win re-election. In declaring that five districts in those two counties discriminated against minorities, the most likely losers in any redrawing of the district maps will be Republican Representatives Rodney Anderson of Irving and Matt Krause of Fort Worth. Anderson was among nineteen House members who voted against Straus in one election for speaker, and Krause is a member of the Freedom Caucus, which has been trying to force a speaker vote in the caucus instead of on the House floor, where Democrats also have a say.

Anderson barely squeaked by in 2016, in a district that was ever so slightly bluer than HD107, which flipped to the Dems. He was going to be a target no matter what. The ripple effect in Dallas could be very interesting. And of course, anything that puts jerks like Krause in jeopardy is a good thing. We’ll know if and when SCOTUS intervenes if a second special session will be forthcoming. A statement from MALC is here, and Michael Li, the Chron, the DMN, Rick Hasen, the HuffPost, and the Lone Star Project have more.

Voter ID law thrown out

Fantastic.

Still the only voter ID anyone should need

A federal judge has tossed out a new law softening Texas’ strict voter identification requirements.

U.S. District Judge Nelva Gonzales Ramos on Wednesday ruled that Senate Bill 5, signed by Gov. Greg Abbott in June, doesn’t absolve Texas lawmakers from responsibility for discriminating against Latino and black voters when they crafted one of the nation’s strictest voter ID laws in 2011. The judge also ruled that the state failed to prove that the new law would accommodate such voters going forward.

[…]

Minority groups suing the state had asked Ramos to scrap SB 5, saying it still dripped with discrimination — largely because lawmakers did not expand the list of acceptable IDs.

Ramos agreed in her ruling Wednesday.

“SB 5 does not meaningfully expand the types of photo IDs that can qualify, even though the Court was clearly critical of Texas having the most restrictive list in the country,” she wrote. “Not one of the discriminatory features of [the old law] is fully ameliorated by the terms of SB 5.”

SB 5’s process for voters without proper ID, Ramos wrote, “trades one obstacle to voting with another—replacing the lack of qualified photo ID with an overreaching affidavit threatening severe penalties for perjury.”

The ruling also said Texas couldn’t be trusted to educate voters about changes to its ID law, following its widely criticized efforts ahead of elections in 2016 that were marked by confusion at the polls. She noted that Texas has claimed to spend $4 million on voter education before the 2018 elections, “but this stipulation is not part of SB 5 or any other statute.”

See here for the most recent update, and here for a copy of Judge Ramos’ order. Rick Hasen explains what this means.

To simplify things just a bit, when the district court first looked at this case, it determined that Texas’s voter ID law had a racially discriminatory effect, violating Section 2 of the Voting Rights Act, as well as a racially discriminatory purpose, violating the VRA and the 14th and 15th Amendment of the Constitution. When the case reached the Fifth Circuit on appeal, a sharply divided court sitting en banc (all of the 5th Circuit judges) agreed that the law violated Section 2 given its racially discriminatory effect. But the judges also held that the trial court had to reconsider the question of racially discriminatory purpose, because the court considered some evidence it should not have in evaluating purpose. The Supreme Court did not take a further appeal, with Chief Justice Roberts issuing a separate statement saying that the case was not really final enough to merit Supreme Court review.

For two reasons, it matters whether the courts find discriminatory purpose in addition to discriminatory effect. When there is just a discriminatory effect, the remedy is much narrower. In this case, the interim remedy was to tinker with the voter id law, such as allowing voters to file an affidavit explaining why they lack the necessary ID signed under penalty of perjury. With a finding of purpose, however, the entire law could (and today was) thrown out. Second, a finding of intentional discrimination can be the basis, under section 3c of the Voting Rights Act, to put Texas back under the preclearance provisions of the Voting Rights Act for up to 10 years, at the court’s discretion. The court has scheduled further briefing on the section 3c issue for the end of the month.

Today the court reaffirmed the discriminatory purpose finding, and held that the tweaks Texas made to its voter id law in a recent session did not solve the problem of discriminatory purpose. In some ways Texas made things worse. The affidavit requirement, for example, could intimidate voters given that many sections open up voters to prosecutions for felony perjury. The Court also noted that the new law did not include any money for voter education, which the court found crucial to a fairly applied voter id law.

As Hasen notes, the state will surely appeal, and unlike the redistricting case that will go to the Fifth Circuit, probably to an en banc panel. The key question there will be whether they put Judge Ramos’ ruling on hold and allow the SB5 version of voter ID to remain in effect during the appeals process or not. Ultimately, this ruling as well as any determination that Texas needs to be put back under preclearance, will go to SCOTUS. We’re still a ways off from that, but do remember that discriminatory intent was also found in the redistricting case, so there are two possible causes for a return to preclearance. I’ll say again, the state is on quite the losing streak with voting rights litigation. Being put back under preclearance would be richly deserved. Oh, and both parties will be back in court on the 31st to set a schedule for briefings and hearings on the preclearance question. I can hardly wait. A statement from MALC is here, and the Statesman, the Associated Press, Mother Jones, the DMN, Daily Kos, the Current, ThinkProgress, Vice News, and the Lone Star Project have more.

Fifth Circuit rules against Texas’ voter interpreter law

Good.

Texas ran afoul of the Voting Rights Act by restricting the interpretation assistance English-limited voters may receive at the ballot box, a federal appeals court found.

In an opinion issued Wednesday, a three-judge panel of the U.S. 5th Circuit Court of Appeals ruled that an obscure provision of the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help clashes with federal voting protections.

That Texas law, the court found, violates a less-known section of the Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

Texas had argued that its interpreter requirement was meant to be “supplemental” to the VRA, but the appellate court ruled that the state’s “limitation on voter choice” instead “impermissibly narrows” the voting rights guaranteed by federal law.

“The problem remains that the Texas provisions expressly limit the right to the act of casting a ballot,” the judges wrote. “It should go without saying that a state cannot restrict this federally guaranteed right by enacting a statute tracking its language, then defining terms more restrictively than as federally defined.”

[…]

The interpreter voting law has been on hold since last year when U.S. District Judge Robert Pitman scolded the state for “arbitrarily” restricting voters with limited English proficiency. On Thursday, the 5th Circuit judges agreed with that judge’s ruling, but they sided with the state in determining that Pitman’s injunction on the law was too broad. Pitman must now take the case back up and reconsider the language he used in blocking the interpreter law.

See here, here, and here for the background, and here for a copy of the opinion. Basically, the district court judge’s opinion was upheld, with the injunction being vacated with a remand “for the entry of a new injunction, if appropriate, consistent with this opinion”. There were bills introduced in the Lege to address the issues in the lawsuit, but as far as I know they went nowhere. Maybe next time. Until then, we’ll see what the district court does, and if the state appeals. That’s quite the losing streak in voting rights-related cases we’re on here, isn’t it?

Texas to appeal redistricting ruling

Here we go.

If Gov. Greg Abbott calls a second special legislative session this summer, it won’t be for redistricting.

Texas Attorney General Ken Paxton revealed Friday that Abbott won’t ask lawmakers to redraw the state’s congressional map — found by a federal court this week to discriminate against Latino and black voters — in a fresh round of legislative overtime.

Instead, Paxton is appealing the ruling to the U.S. Supreme Court and trying to keep the boundaries intact for the 2018 elections, according to his filings to a panel of three judges in San Antonio.

[…]

In his filings Friday, Paxton revealed a state plan to wriggle free of any consequences ahead of the 2018 elections. While asking the Supreme Court to overturn the lower court’s ruling that Texas intentionally discriminated against minority voters — the fourth such federal ruling this year — Paxton also requested an injunction that would protect Texas from needing a new map.

Barring a Supreme Court order, the San Antonio judges would approve new boundaries.

“Judges should get out of the business of drawing maps,” Paxton said in a statement. “We firmly believe that the maps Texas used in the last three election cycles are lawful, and we will aggressively defend the maps on all fronts.”

See here for the background. The state is playing for all the marbles here – if they don’t get a stay, and Rick Hasen thinks SCOTUS may not care to get involved at this time, then it will indeed being judges drawing the maps. The upside for the state is they get to keep the current maps, and then maybe get the discriminatory intent ruling(s) overturned down the line. The downside is judge-drawn maps, possibly delayed primaries for this year, and a return engagement with preclearance, which could extend into the next Presidential administration. No big deal, right? I’m sure the plaintiffs will contest the motion for a stay, so now we wait and see what SCOTUS chooses to do. In the meantime, assuming SCOTUS hasn’t put up a stop sign before then, everyone heads back to court on September 5 to fight over what new maps should look like. Michael Li and the DMN have more.

(On a side note, Li quotes from the state’s motion in which they say one reason why they will not call a special session to consider drawing new maps is because there wouldn’t be time to “hold protracted hearings involving interest groups”. Which is pretty frigging funny considering that they didn’t bother holding any hearings when they drew the current maps. Do you think Ken Paxton ever had shame, or do you think he had it surgically removed at some point?)