| Opponents of the new congressional and state legislature maps in Texas scored a major victory in federal court in D.C. today.
The three judge panel in D.C. ruled that Texas did not meet its burden under Section 5 of the Voting Rights Act (the "Act") to show that the redrawn maps would not have a retrogressive effect, as to the U.S. Congressional and State House Plans, and that the U.S. Congressional and State Senate Plans were not enacted with discriminatory purpose.
The court further ruled that Texas failed to carry its burden with regard to Plans C185 (Congressional Plan), S148 (Senate Plan), and H283 (House Plan) in showing that they do not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under Section 5 of the Act.
As a result, Texas was denied the declaratory judgment it sought - that the court preclear its redrawn maps and declare that those maps neither "have the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [language minority group]."
In finding that the Texas plans were retrogressive, the court reasoned that it did not have to defer to Texas' legal theory on how best to measure minority voters' ability to elect. That power and determination was left to the United States Attorney General and the federal judiciary under Section 5 of the Act.
Where Texas sought to minimize and divide under the mantle of inclusiveness, the court did not take the bait. In its findings, the court did not exclude data sets as Texas asked them to. The court was not comfortable relying on the data and analysis of any single expert. Further, the court was not satisfied with an analysis that relied on the horse-trading of districts; rather, the court stated:
"Section 5 is not concerned with the location of particular ability districts, but rather with whether the enacted plan, in its entirety, preserves minority voters' ability to elect. In other words, section 5 allows a state to dismantle an ability district as long as it offsets that loss by drawing a new ability district elsewhere."
The court made this further distinction:
"Congress...[made] it clear that retrogression is not concerned with the degree of influence minority voters exert, but with their ability to elect their preferred candidates. See 42 U.S.C. § 1973c(b) (stating that voting changes must not diminish minority citizens' "ability . . . to elect their preferred candidates of choice"), id. § 1973c(d) (defining subsection (b)'s purpose as protecting "the ability of [minority] citizens to elect their preferred candidates of choice")."
The court also relied on the Supreme Court case of Georgia v. Ashcroft, 539 U.S. 461 (2003), to find that both crossover and coalition districts are contemplated and protected by Section 5 of the Act, citing the Ashcroft language comparing these districts to "safe majority-minority districts." (These are districts where on minority is not necessarily able to elect the candidate of its choice but can do so with aid from the majority or from another minority). The court also noted the approval this language and interpretation received when Congress reauthorized the Act in 2006.
"Voting changes that leave a minority group less able to elect a preferred candidate of choice, either directly or when coalesced with other voters, cannot be precleared under Section 5.""
In laying out its analysis of finding discriminatory intent of these plans, the court emphasized the explicit congressional intent and response to prior U.S. Supreme Court precedent which would have permitted discriminatory purpose in drawing voting districts.
"In Reno v. Bossier Parish School Board (Bossier II), 528 U.S. 320 (2000), the Supreme Court considered whether section 5 barred a plan that "would have no retrogressive effect" but "nonetheless . . . was enacted for a discriminatory 'purpose.'" Id. at 325. The Court held that it did not, concluding that the purpose prong extended only to intent to retrogress, not to all intentional discrimination. Thus, section 5, the Court wrote, would catch only an "incompetent retrogressor," but offered no recourse against a mapdrawer who intended to discriminate against minority voters using methods that did not create retrogression. Id. at 332. In direct response, the 2006 amendments to section 5 clarified that the term "purpose" must be read more broadly and includes "any discriminatory purpose." 42 U.S.C. § 1973c(c); see also H.R. REP. NO. 109-478, at 93 (stating that Congress "rejects the Supreme Court's holding in Reno v. Bossier Parish"). As a result, we may not preclear any redistricting plan enacted with discriminatory intent."
Texas argued that it did not have to show a lack of discriminatory purpose. The court ruled otherwise.
The districts for which the court provided an extensive retrogression analysis are: Congressional District 27, Congressional District 23; State House District 33, State House District 35, State House District 41, State House District 117, State House District 149, and State House Districts 26, 106, and 144.
The court also addressed discriminatory intent as to all three plans.
The case is 11-cv-1303. The opinion may be viewed here.