There's an election happening this May that progressives across Texas need to keep their eyes on, over in the northwest corner of Dallas County.
Farmers Branch, a community of 28,000 residents, is holding its first single-member districts municipal election, and stands a chance of reversing its recent history of making headlines for efforts to drive out the town's Hispanic population.
Last year, the city was forced to switch to single member districts after the at-large seats were found to violate the Voting Rights Act. The lawsuit successfully argued that Hispanics in Farmers Branch "had less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice," wrote Judge Sidney Fitzwater in his opinion.
This effort to change the system of municipal representation in Farmer's Branch comes six years after a highly divisive and ugly legal battle over an ordinance that targeted undocumented immigrants. In 2006, the Farmers Branch council became the first in Texas to pass an ordinance that fined landlords who rented to undocumented immigrants, allowed police to check immigration status, and mandated English as the official language of the city.
The ordinance was largely viewed as a response to the growth in Hispanic residents in the small, previously Anglo community. (Currently, 37% of residents are Hispanic.) It was the work of then-Council Member Tim O'Hare, who panicked over what he described as an influx of "less desirable people."
Opponents of the anti-immigrant measure petitioned for a special election to allow voters to decide whether the ordinance should be implemented or not. Unfortunately hate won the day, with 68% of voters supporting the referendum. The mayor at the time, Bob Phelps, opposed the measure, and had his windows broken as a result. He retired in 2008, and Farmers Branch elected O'Hare, father of the anti-immigrant ordinance, as Mayor.
In the ensuing years, the anti-immigrant ordinance has kept Farmers Branch in the news and in the courts, costing $5 million dollars of tax revenue in a short-sighted and divisive attempt to drive away Hispanic residents. The ordinance was blocked in state court, so national anti-immigrant activists helped the Farmers Branch council write new bigotry-mandating ordinances to withstand legal scrutiny. The ordinance was eventually struck down by the 5th Circuit as unconstitutional, since the ordinance's sole purpose was to exclude Latinos from the City of Farmers Branch.
Farmers Branch has been in the news for the last seven years for all of the wrong reasons. Now, the town has a chance to make some positive headlines.
This May is the first election under the single member districts map, and perhaps no contest better represents the potential positive outcome of these pitched legal battles than the race for District 1. Two candidates are now seeking to represent District 1, where 79% of the population is Latino. Ana Reyes, a native of the district, currently serves as District Manager for State Representative Rafael Anchia. William Capener, a self-described conservative and Tea Party activist, says he was inspired to run because of his opposition to single-member districts.
I recently spoke with Reyes on the phone about her candidacy. Learn more about her campaign for Farmers Branch City Council below the jump.
As Adam Liptak reported in The New York Times, the U.S. Supreme Court yesterday heard oral arguments in yet another case concerning voting rights. This one addressing "whether Arizona can require proof of citizenship from people seeking to register to vote in federal elections." Additionally, as reported in The Atlantic Wire, the Supreme Court is likely to soon issue an opinion in the Abigail Fisher case - the case challenging the use of race in college admissions - and specifically at The University of Texas at Austin.
Learn more below the jump about how Antonin Scalia recently dismissed the right to vote as a mere racial entitlement.
(Thanks to Michael Li for this servicey explainer about Section 5 in advance of this week's hearing. - promoted by Katherine Haenschen)
With the Supreme Court set to take up the constitutionality of section 5 of the Voting Rights Act on Wednesday in one of the most momentous cases this term, here's a look at the history of section 5 in Texas:
Texas is one of 8 states currently covered in its entirety by the preclearance provisions in section 5 of the Voting Rights Act. In addition, another 8 states are partially covered. The other states covered in whole are: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, and South Carolina. Virginia also is covered as a state, although a number of its counties and political subdivisions no longer are.
Texas was not covered under section 5 until 1975 amendments to the Voting Rights Act, which added provisions to address discrimination against language minority groups. Like Arizona, Texas became covered because Spanish speakers at the time of the November 1972 general election constituted more than 5% of voting age citizens but the state still provided election information only in English.
Since becoming a covered jurisdiction, Texas and its political subdivisions have been the subject of 206 preclearance objections from the Justice Department - more than any other covered jurisdiction. Additionally, although Texas elected not to submit its 2011 legislative and congressional redistricting maps to DOJ for preclearance, a three-judge panel denied preclearance to all three of Texas' plans in 2012.
Of the objections since Texas became a covered jurisdiction, 73 occurred between 1975-1979, 53 were between 1980-1989, 65 were between 1990-1999, and 15 have been since 2000. In all, 112 of the objections were lodged by under Republican administrations and 94 during Democratic administrations.
Prior to the Obama administration, the Justice Department objected to all three of the state's redistricting plans in the 1981 cycle, the state house and state senate redistricting plans in the 1991 cycle, and the state house plan in the 2001 cycle. In 1991, DOJ also objected to the City of Dallas' proposed 10-4-1 city council plan.
In 2011-2012, in addition to opposing Texas' redistricting plans and Texas' voter ID law (SB 14), the Justice Department objected to redistricting plans for county commissions in Galveston and Nueces counties and to a change in the way the trustees for the Beaumont Independent School District would be elected.
If section 5 is upheld, Texas would remain covered by preclearance requirements until 2031, unless at some future juncture it qualifies for bailout under provisions of the Voting Rights Act. Under current law, to bailout as a state, Texas and all of its political subdivisions would need to have a 'clean record' under both section 5 and section 2 of the Voting Rights Act for a period at least ten years, in addition to meeting other statutory requirements.
Political subdivisions, such as counties, also can bailout on their own if they independently meet the bailout tests, though to date none have done so in Texas. Nationwide, roughly 125 jurisdictions have bailed out since 2009.
As a covered jurisdiction, Texas is required to submit all voting related changes either to the Justice Department or to a court in Washington D.C. for approval (preclearance) before they can be put into effect. This requirement includes changes in the manner of voting, candidacy requirements, abolition of an office, annexations, redistricting plans as well as things like the location of precinct polling places and changes in political parties' delegate selection rules.
This post was updated to add a missing bullet point that disappeared into the ether during reformatting. -- KH
The State of Texas is challenging the Voting Rights Act as part of a new strategy to defend its Voter ID law. While an unsettling strategy, observers have predicted such a move from Attorney General Greg Abbott for some time. Last December, Rick Hasen of the Election Law Blog wrote a column laying out the rationale for a Voting Rights Act challenge that could arise out of redistricting cases from either Texas or South Carolina.
For perspective as to why this specific strategy is important, read what he wrote about South Carolina at the time (but is equally applicable to Texas, as noted by the author here).
While many read the court's 2009 decision as an invitation for Congress to fix or update Section 5, Congress has done nothing. Meanwhile, the constitutional question has been percolating in the lower courts, and most knowledgeable observers expected the issue to get to the court in the next few years.
But it now seems pretty likely that the South Carolina case will leapfrog over those others, and ask the Supreme Court to consider the constitutional question soon, in the same term that the court is likely to decide on the constitutionality of health care legislation, Texas' new redistricting plans, and Arizona's controversial immigration measure.
While you might expect the Supreme Court to try to duck the potential for yet another blockbuster decision this term, a procedural oddity of the Voting Rights Act makes it unlikely. Most cases come up to the Supreme Court review through a petition for a writ of certiorari. The court has total discretion about whether or not to hear such cases. But a very small minority of cases-almost all of them election cases-come to the Supreme Court on a direct appeal from a three-judge court. South Carolina's expected litigation over its voter ID law will go before just such a court in Washington, D.C., with direct appeal to the Supreme Court. Unlike an ordinary denial to hear the case, a Supreme Court decision not to hear an appeal from a three-judge court is a decision on the merits, an indication that the lower court got the decision right. (That's not true with cert. denials.)
If South Carolina argues in court that it is unconstitutional to require it to submit its voter ID law for federal approval, and the three-judge court rejects that argument, it is hard to imagine the Supreme Court conservatives refusing to hear that case. And further, because this is an election-related case, it is likely to be fast-tracked like the Texas redistricting case. South Carolina is claiming it needs to use voter identification in the upcoming election to preserve the integrity of its electoral process. DoJ is blocking the state's law. This almost perfectly tees up the issue of federalism and state sovereignty.
Hasen follows up with updated thoughts on the matter in his post.
(Do Republicans really want to remind everyone that they don't think minorities should be voting? Or is AG Greg Abbott just getting bored? Either way, Greg Abbott is yet another Republican determined to tarnish the reputation of Texas. - promoted by Katherine Haenschen)
Looks like the State of Texas wasn't too happy about DOJ's rejection of its voter ID law on Monday.
The State of Texas is seeking permission from the three-judge panel in the voter ID case to file an amended complaint that would directly challenge the constitutionality of section 5 of the Voting Rights Act.
The amended complaint told the court in the introduction that, as an alternative grounds for relief, "the State of Texas seeks a declaration that section 5, as most recently amended and reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006, exceeds the enumerated powers of Congress and conflicts with Article IV of the Constitution and the Tenth Amendment."
With today's filing, Texas now moves to the forefront, along with the Shelby County case, in re-raising the constitutional issue. However, because Texas' case, unlike the Shelby County case, involves a three-judge panel, appeals from the case would go directly to the Supreme Court. That means Texas' case has the potential for getting to the Supreme Court first, depending on how the timing works out.
Suffice it to say, things just got a little more interesting.
This is BOR's Video of the Day, or VOTD, our nightly video clip segment that hopefully provides you with a laugh or a chance to think at the end of the day.
Today marks the 47th anniversary of Bloody Sunday, a turning point in America's fight in the 1960's for voting rights and civil rights as a whole. On this day, hundreds of peaceful demonstrators marched from Selma to Montgomery, Alabama. When the marchers reached the Edmund Pettus bridge, state and local law enforcement attacked them with tear gas and nightsticks. It was a terrible day in our nation's history.
Sadly, too many Americans think the fight for civil rights is a relic of the past. Today, many Americans still struggle for basic equality, and are still discriminated against for their race, sex, age, sexual orientation or identity, and/or immigration status.
Here in Texas, this fight also continues at the ballot box, as Attorney General Greg Abbott tries to enforce the Republican legislature's photo ID law, which will have the effect of suppressing the voting rights of minority voters, rural voters, young voters, disabled voters, and just about any population group that tends to vote for Democrats.
Make no mistake -- this law is a solution to a problem that doesn't exist, and is intended to discriminate against voters who tend to be Democratic -- especially minority voters.
Tonight's video is from PBS's American Voices and features Bernard Lafayette, who marched in Selma on that fateful day, discussing how the laws passed these past few years by Republicans will making voting as difficult for African-Americans as it was in the Old South.
Republicans are forcing Americans to fight the same battles that we did a generation -- two generations -- ago: voting rights, civil rights, reproductive rights. The GOP has been on the wrong side of history in all of these battles. I wish they'd recognize that the arc of history would bend a little faster if they'd just get out of the way.
The Washington Post has an excellent run-down of the events that brought us to where we are in the current redistricting/election calendar mess.
In particular, Aaron Blake cogitates on which map is likely to be used for the 2012 elections, and the implication of that decision on future redistricting lawsuits focused on pre-clearance. He writes:
It seems very unlikely that the map drawn by Republican state legislators will be used for 2012. The fact that the D.C. district took up the case suggests it sees something objectionable. And even if the state legislature were able to draw a new map to comply with the court's ruling, it would have to go through pre-clearance again and wouldn't be ready in time for the 2012 election.
It's also pretty unlikely that the Supreme Court will sign off on the three-judge panel's interim map. Like the D.C. district court, the Supreme Court's decision to take up the case suggests there is something it doesn't like about the interim map.
Blake suggests that SCOTUS will give the San Antonio court instructions on how to revise their map, likely to bring it into closer alignment with the state's initial Republican gerrymandered map. His logic is as follows:
First, the Supreme Court could tell the three-judge panel in San Antonio that it needs to draw something closer to the map drawn by the state legislature. Or second - and this is the Nuclear Option - it could say that the state should simply use the map drawn by the state legislature.
The former option would set a new standard when it comes to court-drawn maps. Currently, court-drawn maps are drawn with deference to the last constitutionally-approved map available (i.e. the existing map). Changing the standard would give state legislatures greater power over the final product, even in the event that their maps are invalidated.
This, apparently, is what is at center of Abbott's challenge and what SCOTUS is interested in: when adjusting a map that fails to receive pre-clearance (as the Legislature's gerrymandered/minority-quashing maps did) do the courts start with the bad map and make it less-bad? Or do they start with the current districts (i.e. what we used in 2010) and tweak them to reflect population growth and change?
If SCOTUS tells the San Antonio panel to re-do their work and draw a less-bad, non-gerrymandered version of the map the Republicans put forth in the legislature, well, isn't that kind of like putting lipstick on a pig? Every legislature-drawn map was crafted with the explicit intent of denying minority Texans the representation they have earned due to population growth. Oh, and as a side effect they wanted to run folks like Wendy Davis and Lloyd Doggett out of office.
Is it even possible to start with the hack-job the Republicans drew and make it sufficiently less bad so as to not have a CD-25 that starts in African-American East Austin, stretches up through Fort Hood, and peters out in southern Tarrant County?
The latter [telling the state to use the Legislature's map] would be the big one, as some suggest it would essentially invalidate the section of the Voting Rights Act - Section 5 - that requires states like Texas to get pre-clearance. Essentially, the maps would no longer have to be pre-cleared. This would allow these states greater freedom to draw their maps and increase the burden on minority groups and others who may fight the maps in court. These groups would no longer have an avenue to stop the maps before they are enacted.
Some SCOTUS followers have indicated that Chief Justice John Roberts has been wanting to get his hands on Section 5 of the Voting Rights Act, the part that sets forth pre-clearance. Pre-clearance requires either the Department of Justice or a three-judge panel of the DC Federal District Court to basically approve map changes and make sure they don't unfairly discriminate against minorities. Here's a map of jurisdictions requiring pre-clearance. As you can see, it's mostly Southern states, in a vestige of the racism of the 1960's that required the VRA in the first place.
If SCOTUS goes this route, then all eyes turn to the pre-clearance case itself, which is set for January 17-26 in DC. Right now, the Legislature's maps have not received pre-clearance, but haven't been denied pre-clearance either. (Clearly, at the very least, there is a problem when the vast majority of a state's population is from minority residents, yet minority representation does not reflect that growth.)
In the scenario where SCOTUS forces the state to use the Legislature's maps, and then those maps fail to gain preclearance, the San Antonio court will then draw remedial maps to address the problems identified in the Legislative maps by the DC Court.
And as always, don't forget that this mess has been brought to you by Republican overreach in the Legislative redistricting process, when their partisan gerrymander deeply disenfranchised minority communities.
In an 8-1 ruling, the US Supreme Court upheld Section 5 pre-clearance as related to the decades old Voting Rights Act. While sidestepping the question of the constitutionality of the VRA, the court issued a narrow ruling that expanded the definition of what constitutes a "political subdivision" that is allowed to apply for exemption from pre-clearance.
The case, Northwest Austin Municipal Utility District v Holder (08-322), began here in Austin The term "political subdivision" was previously defined to include "counties, parishes, and voter-registering subunits." In the decision today, the "bailout" option was expanded to include all governmental subdivisions including Municipal Utility District's like the one in Austin that sought Supreme Court relief.
Today's ruling does not preclude a future challenge to the Voting Rights Act on broader constitutional grounds. Given that the court declined to take advantage of this case for that purpose, it may signal disinterest to address the subject agin for the immediate future. As a result, major changes to Texas election law, specifically a Voter Photo ID requirement and the 2011 redistricting plans, will be subject to review and approval by the Obama Justice Department.