Houston Chronicle Sunday

Voting case has all eyes on Texas

Justices to rule on issues of race, gerrymande­ring

- By Kevin Diaz

WASHINGTON — 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 Republican­led state Legislatur­e purposely draw its last legislativ­e and congressio­nal boundaries to subvert the voting power of Latinos and AfricanAme­ricans?

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 was 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.

Since the state’s political boundaries came under challenge after the

2010 census, the case has involved at least 10 different plaintiff groups, the Justice Department, two Texas governors and several alliances of AfricanAme­rican and Hispanic voters.

“They silenced the voices of minorities at the ballot box,” said Texas Democratic Party Chair Gilberto Hinojosa, accusing Republican­s of “stacking the deck” by drawing lines to both pack together and separate people of color to dilute their voting strength.

Texas Attorney General Ken Paxton, in a recent statement welcoming the Supreme Court review, called a lower court’s decision invalidati­ng parts of the current district maps “inexplicab­le and indefensib­le.”

State Republican Party Chairman James Dickey argued that Texas’ political boundaries were fairly drawn and that it would take “some serious overreach” to redraw them.

Questions of legislativ­e gerrymande­ring — drawing oddly configured district lines for partisan advantage — have been around since the dawn of the Republic. But the issue reached a political crescendo this year as the electoral maps of at least eight states have been involved in redistrict­ing litigation.

This week, Texas will move to center stage as the Supreme Court takes up Abbott v. Perez, a gerrymande­ring case that adds a racial overlay to the usual partisan redistrict­ing narrative.

The Supreme Court also has taken up closely watched cases from Wisconsin and Maryland — both of which allege partisan gerrymande­ring, by Republican­s in Wisconsin, and by Democrats in Maryland.

Nobody knows where the high court is headed with this cluster of redistrict­ing cases, though some analysts suggest that alleged racial discrimina­tion might be easier to remedy than discrimina­tion based on party affiliatio­n alone.

The Supreme Court threw out a GOP-drawn congressio­nal map in North Carolina last year on racial grounds. But in past court rulings, the justices have expressed deep reservatio­ns about wading into the battles between Democrats and Republican­s.

When it comes to raw partisansh­ip, few legislativ­e exercises match the smash-mouth brinksmans­hip drawing political boundaries after each decade’s national census. Texas might have set a new standard in 2003 when then-U.S. House Majority Leader Tom DeLay of Sugar Land led an unusual mid-census redistrict­ing push. That battle saw outnumbere­d Democrats in Austin flee the state to deny their Republican counterpar­ts a quorum in the Texas House.

DeLay’s gambit ultimately worked. The number of Republican­s in the state’s congressio­nal delegation went from 16 to 21, helping cement DeLay’s position in the House leadership. Since the 2010 census, new redistrict­ing maps have helped the GOP win 25 of the state’s 36 current congressio­nal seats.

The new maps, first drawn in 2011 — and then again in 2013 under court order — are the starting point of the case now going before the Supreme Court.

Minority groups say both violate federal law. Déjà vu all over again

If there’s a sense of déjà vu in this case, it’s because the 2003 maps also wound up before the high court, along with questions about diluting the voting strength of minorities. But the 2003 redistrict­ing largely held up, with adjustment­s being ordered only to the majority-Hispanic Texas’ 23rd congressio­nal district, now represente­d by Republican Will Hurd.

The new Texas challenge reflects a continuing search for what Justice Anthony Kennedy once called a “workable” standard for curbing aggressive gerrymande­ring. The standard remains elusive. And it is Kennedy who, once again, may be a pivotal vote in the latest Texas challenge.

No matter what the court decides, legislativ­e veterans say it’s hard to keep the politics out. U.S. Sen. John Cornyn, who chaired Texas’ legislativ­e redistrict­ing board in 2000, called it “inherently a political process,” adding, “It’s just hard to know what alternativ­e might be available.”

One defense that might be used by the state is that it was pure partisan politics, not racial discrimina­tion, that drove the configurat­ion of the state’s current boundaries.

The justices will be picking up the pieces from a pair of lower court rulings, including the decision of a three-judge panel in San Antonio that invalidate­d the boundaries of a pair of congressio­nal districts and nine Texas House districts.

The congressio­nal districts in question are District 27, centered in Corpus Christi, and District 35, a narrow stretch running from Austin to San Antonio — derisively called the “fajita strip” for its large concentrat­ion of Hispanics.

In addition to the two congressio­nal districts, the case involves nine Texas House seats where a federal court ruled lawmakers diluted the strength of minority voters. Five of those districts are in the Dallas-Fort Worth area. Bell County, south of Waco, and Corpus Christi’s Nueces County each have two districts that could be redrawn pending the outcome of the case.

If the U.S. Supreme Court rules against Texas, it could mean the creation of three Latino state House districts, said Jose Garza, a voting rights attorney for the Mexican American Legislativ­e Caucus, one of the parties to the suit.

The number of districts that could be redrawn represents a small fraction of the 150 state house districts, although boundaries for nearby districts could be affected. However, the changes would not alter the balance of power in the Texas House where Republican­s outnumber Democrats nearly 2-to-1.

But even if the case doesn’t alter Texas’ overall GOP partisan advantage, it could set the stage for reform in how lines are drawn.

“People are really frustrated about politician­s choosing their constituen­ts, whether they’re Republican­s, Independen­ts or Democrats,” said Rep. Rafael Anchia, a Dallas Democrat who represents one of the districts subject to the lawsuit.

In Congress, Democrats believe that a more representa­tive distributi­on of minority voters could help them win two or three more House seats. But that is a distant hope.

U.S. Rep. Republican Blake Farenthold, a Republican who had been facing a congressio­nal ethics investigat­ion for sexual harassment, recently resigned the District 27 seat, though as currently drawn it is still considered a safe GOP district. Democrat Lloyd Doggett now represents the 35th congressio­nal district, a safe Democratic seat.

Also contested was Hurd’s 23rd congressio­nal district, though the lower courts said that one can stand. Ripple effect

While the battlegrou­nd may be limited, any changes to the districts under challenge also could have ripple effects in surroundin­g districts if the courts require them to be redrawn.

The high court in September blocked the lower court rulings requiring that the challenged districts be redrawn for the 2018 elections, a temporary victory for Republican­s who have defended the maps.

The challenger­s — including the NAACP and the Mexican American Legislativ­e Caucus — hinge their case heavily on the state’s rapid population growth between 2000 and 2010, the bulk of which was Latinos and African-Americans. Texas gained four congressio­nal seats from the 2010 census, but Democrats contend that the Legislatur­e’s newly drawn districts intentiona­lly diluted the voting strength of the state’s minority population.

“It’s important for the political process in Texas that ultimately they draw fair districts, which means that as the population changes and grows, the political jurisdicti­ons reflect the people in those districts,” said U.S. Rep. Sheila Jackson Lee, a Democrat who represents a majority-minority district in central Houston.

The state’s GOP leaders have questioned in their court filings how the current interim maps can be construed as unconstitu­tional when they were redrawn under court order.

“The plaintiffs have not come close to satisfying their burden of proving that the Legislatur­e enacted the district court’s own maps in a sinister effort to discrimina­te against minority voters,” the state wrote in a brief submitted by Texas Solicitor General Scott Keller, former chief counsel to U.S. Sen. Ted Cruz.

Cruz was the state’s solicitor general in 2006 and made the arguments for Texas that in year’s redistrict­ing case before the Supreme Court.

Lawyers for the groups alleging discrimina­tion have sided with the lower court rulings that in revising their district boundaries, Texas lawmakers failed to remove the purported “discrimina­tory taint” from the provisiona­l court-imposed plans. For example, they noted that the two congressio­nal districts under challenge remained identical from 2011 maps to the 2013 courtorder­ed revisions.

“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 challenger­s said. “The district court rightly saw through the 2013 masquerade.”

Whichever way the court rules, the redistrict­ing saga is unlikely to end soon.

The 2020 census is now less than two years away, which will begin the next redistrict­ing battle. Andrea Zelinski contribute­d to

this report.

“People are really frustrated about politician­s choosing their constituen­ts.” Rep. Rafael Anchia, a Dallas Democrat

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 ?? Tom Reel / San Antonio Express-News ?? U.S. Rep. Tom DeLay led an unusual mid-census redistrict­ing effort in 2003 that ultimately worked, increasing the number of Republican­s in the state’s congressio­nal delegation from 16 to 21.
Tom Reel / San Antonio Express-News U.S. Rep. Tom DeLay led an unusual mid-census redistrict­ing effort in 2003 that ultimately worked, increasing the number of Republican­s in the state’s congressio­nal delegation from 16 to 21.

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