DOJ hits hard at Texas on redistricting

by: Michael Li

Wed Oct 26, 2011 at 01:18 PM CDT

To kick off things, on Halloween, a federal court in San Antonio begins considering temporary maps for the 2012 election cycle.

And then on Wednesday, the action shifts to Washington D.C. where a panel of three federal judges takes up the State of Texas' request to have its redistricting maps pre-cleared under section 5 of the Voting Rights Act (something Texas is required to do because of its extensive history of discriminating against minority groups).

In papers filed yesterday evening in Washington, the Department of Justice made clear that it will vigorously oppose Texas' request, slamming the state for using the wrong legal standard and arguing that "there is direct and circumstantial evidence that the development and passage of [the state's] redistricting plans were tarnished by the prohibited purpose of diminishing the ability of citizens of the United States on account of race, color, or membership in a language minority group to elect their preferred candidates."  

The crux of the state's argument on discriminatory effect ('retrogression' in legal parlance) has been the claim that courts need only look at majority minority districts and that its maps pass muster because the state maintained or increased minority percentages in those districts.  According to Attorney General Greg Abbott, districts where one minority group does not form a majority of the citizen voting age population are irrelevant for purposes of section 5 preclearance.

Calling the state's proposed standard "arbitrary" and a mere "rote application of a population formula," the Justice Department countered that:

Determining whether a minority group has the 'ability to elect' a candidate of choice under Section 5 is not as simple as looking at a discrete set of population figures. 'The legal standard is not total population, voting age population, voting age citizen population or registration, but the ability to elect . . . .  Determining whether the ability to elect exists 'requires a functional analysis of the electoral behavior in the particular jurisdiction or election district.'

Using CD-23 as an example, the DOJ went on to explain:

The State has created a proposed District 23 that appears to be a better Hispanic district if one looks only at population but is actually a lower performing district when one looks at election data, in order to protect the Republican incumbent.

The DOJ explained that under the state's new map, the Hispanic candidate of choice goes from winning 40% of the time in CD-23 to winning ZERO percent of the time.

The DOJ also sharply rejected Attorney General Greg Abbott's argument that only majority minority districts are relevant in a preclearance analysis. In its filing, DOJ accused Abbott of  "conflating Section 5 with Section 2 of the Voting Rights Act, which the Supreme Court has repeatedly advised against."  The DOJ explained that even where a minority group is not a majority, it still can have the 'ability to elect' its candidates of choice.  

Using the correct standard, DOJ told the D.C. panel that Republicans' proposed  state house map reduced the number of effective minority districts from 50 to 45 or 46.

The DOJ took issues with the state's proposed congressional map in light of "an almost unprecedented increase in the number of seats in its congressional delegation - four - resulting from a State population increase fueled mostly by the increase in the State's Hispanic population."

Despite that growth boom, according to DOJ, "[u]nder the proposed plan, Hispanic voters will lose ground in their existing ability to elect candidates of choice  ... even though the number of Hispanic majority districts remains the same [at] seven," pointing to what it says are problems in CD-23 and CD-27.  

The DOJ also disagreed strongly with the state on discriminatory intent arguing that there is "direct and circumstantial evidence" that "both plans were enacted with discriminatory purpose."  This evidence, the DOJ says, includes "setting boundaries [for districts] at a level of detail where race is the only available data and substituting low-turnout Hispanics for higher ones" as well as numerous issues with the "secretive" process by which the maps were drawn with "little or no opportunity for minority representatives of choice to participate."

Intervenor groups, including State Senator Wendy Davis, the NAACP, and the Mexican-American Legislative Caucus, echoed the DOJ in their briefs, calling the state's retrogression analysis "simplistic" and accusing the state of improperly trying to shirk its burden of proof on discriminatory intent issues.

The state has until October 31 to file a reply.  The D.C. panel holds oral argument on the state's request for a judgment in its favor on November 2.

The long and the short:  It looks increasingly like the San Antonio court will need to draw temporary maps because it doesn't appear like the D.C. case will be done before start of the candidate filing period on November 12.

Here are the parties' briefs:

DOJ:

http://tinyurl.com/6dyqnfr

Intervenors' joint brief:

http://tinyurl.com/5to3uxk

Gonzales intervenors:

http://tinyurl.com/3eovu36

LULAC/MALC:

http://tinyurl.com/3p82bak

NAACP/Texas Legislative Black Caucus/African-American members of Congress:

http://tinyurl.com/5ug93vh

Texas Latino Redistricting Task Force:

http://tinyurl.com/3vjzoks