Behind the legal fights over the federal Voting Rights Act — whether Texas and other states ought to get federal permission before changing their election laws — is a fundamental question: Does Texas still discriminate?
As of a year ago, a panel of three federal judges in Washington unanimously decided the answer was yes, and said in a footnote that “the parties have provided more evidence of discriminatory intent than we have space, or need, to address here.”
That panel had been asked to “preclear” the Texas maps — to make sure, under the Voting Rights Act, that the state Legislature had drawn new maps without violating anyone’s rights. The state appealed the panel’s decision to the U.S. Supreme Court.
That court never heard it. Instead, the justices vacated the Texas ruling after deciding in another case that Texas and other states with histories of racial discrimination no longer had to get federal permission before changing election laws. In that case, which started in Alabama, the court said the federal law still allows courts to require preclearance in places where it finds intentional discrimination.
It also said, however, that the federal law’s formulas for including states with historic discrimination was unconstitutional. That last bit freed Alabama, Texas and a number of other places that have been under federal oversight for decades.
In practical terms, the court’s ruling unsnarled a legal traffic jam that had tied up the Texas maps for congressional and legislative districts as well as the state’s voter ID law, which requires people to carry photographic proof that they are who they say they are before they are allowed to vote.
Still, there’s that pesky finding of intentional racial discrimination burned into the maps. The state’s lawyers saw that one coming. While the Texas maps were pending, a different federal court — this one in San Antonio — drew maps for use in the 2012 elections. And in the first special session this summer, Attorney General Greg Abbott finally got his wish, which was that the Legislature would adopt those court-drawn maps (with a few relatively minor tweaks) and abandon the maps drawn earlier.
Without that deft maneuver, the state would have found itself defending the old maps again, albeit in a different federal court, in a trial that would have revived the claims of discrimination.
There is, after all, still another court in session, asked to decide whether minorities are fairly represented in the state’s redistricting maps. That San Antonio panel is looking at the status of things now that the state has adopted new maps and the nation’s top court has issued its Shelby County v. Holder ruling.
Because of that ruling, and the now-vacated finding of intentional discrimination in the Legislature’s 2011 drawing of new maps, the U.S. Department of Justice is asking the judges to pull Texas back under federal oversight. The federal law has a provision that allows voting jurisdictions — Texas, in this case — to be hauled back in for preclearance if a court finds it necessary.
And there is this: The plaintiffs in the San Antonio case want the evidence from the Washington case admitted into their own proceedings, and have told the judges that would save everyone from having to reproduce the documents and testimony already completed there.
That would have the effect of giving a second federal court a bite of the poisoned apple, with the plaintiffs obviously hoping to get the same result in San Antonio that they got in Washington almost a year ago.
Their contention is that the Legislature’s first maps didn’t adequately reflect the growth of the state during the first decade of the century, when 89 percent of the growth came in minority populations, about two-thirds of it from Hispanics alone. For some of the plaintiffs, the court-drawn maps now adopted by the Legislature have some of the same problems.
The federal oversight makes all the difference in how this gets argued. With preclearance, Texas has to prove its actions lacked discriminatory intent, and the maps can’t be used until that is done. Without it, the plaintiffs have to prove that intent to discriminate was there, and the maps can be used for elections until the courts say otherwise.
The judges have to answer the same question either way: Did Texas discriminate in a way that makes the maps illegal?