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How the Texas redistricting lawsuit outlived a voter who sued

The six-year battle over the state’s redistricting plan illustrates how a landmark U.S. Supreme Court ruling four years ago has shifted the burden in challenges of such laws.

Jose Garza, an attorney for the Mexican American Legislative Caucus, and former Texas Rep. Trey Martinez Fischer speak to reporters on April 27, 2017, following a status conference on a years-long challenge to Texas' political maps. 

Lock the Vote

This is an occasional series about how Texas leaders choose their voters — using gerrymandering and voter ID laws — as courts repeatedly scold them for disproportionately burdening voters of color.

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Juanita Wallace was among many voters of color who sued the state over its redistricting plans in 2011, accusing lawmakers of redrawing its political boundaries in a way that diluted the power of black and Latino Texans.

Six years later, several elections have played out using embattled state House and congressional maps, even though federal judges so far ruled that Texas leaders intentionally discriminated in approving the boundaries. And the maps will probably stay in place for the 2018 elections as the U.S. Supreme Court weighs the state’s latest appeal.

Wallace — a longtime educator, civil rights advocate and former head of the Dallas NAACP — won’t be around to see the result. She died of cancer last year at age 70.

“To me, it gets to this question of how do you fight back against this,” said Allison Riggs, who represented Wallace as the senior voting rights attorney with the Southern Coalition for Social Justice. “You want to give this complicated legal analysis a human side, but you’re literally dragging the litigation so long that people are passing away. It’s nuts.”

It’s not rare for Texas to face lawsuits over redistricting, the once-per-decade process of redrawing political district lines to account for changing populations. Federal courts have scolded the Texas Legislature — whether led by Republicans or Democrats — for engaging in a pattern of racial discrimination in every redistricting cycle since 1970. And such legal challenges commonly move at a glacial pace.

But something was different this time around. In 2013, the U.S. Supreme Court issued a ruling that shook up voting rights battles across the American South. The decision in an Alabama case — Shelby County v. Holder — allowed the Texas maps and other new election laws to take effect even before courts finished considering the impact on minority voters. It also shifted legal burdens onto those challenging such laws.

Texas Attorney General Ken Paxton, a Republican, rebuts discrimination allegations. He argues that only politics — not race — motivated party leaders to draw maps that protected their majorities. But even if Paxton loses at the Supreme Court, his party will face minimal consequences at the ballot box. Wallace’s fellow plaintiffs would probably see revised maps for just one election, in 2020, before another U.S. Census triggers another round of redistricting and perhaps more litigation.

“In the old days, which was not that long ago, Texas couldn’t put a discriminatory plan in place. It had to get permission, and it had to prove the plan was not discriminatory before it could go forward,” said Rick Hasen, a professor and election law expert at the University of California, Irvine’s law school. “Now, it not only takes years, it takes millions of dollars in legal fees in order to fight each of these things and, as we see, along the way there could be a number of elections where there is illegal or unconstitutional conduct.”

For decades, civil rights groups in Texas had a powerful tool when challenging an election as discriminatory. It's called "preclearance."

That element of the federal Voting Rights Act required Texas and dozens of other jurisdictions — those that historically discriminated against minority voters — to get federal permission to change election laws. It blocked numerous Texas laws before they might shape elections.

But in its Shelby ruling, the Supreme Court held that conditions for voters of color had “dramatically improved.” The justices gutted Section 5 of the federal Voting Rights Act and freed state and local governments from preclearance requirements.

The 5-4 decision tilted the legal playing field back toward Texas Republicans in a redistricting battle that only grew more complicated.

The state’s current redistricting fight started in 2011 after lawmakers drew new maps in light of fresh Census figures that presented Republicans with a challenge: How to expand their majorities in Congress and the Legislature when demographics appeared to be shifting against them.

Texas was getting four new seats in Congress because the state’s population had soared, but Hispanic and black residents — who tend to vote for Democrats — accounted for 79 percent of that growth. Nevertheless, lawmakers found ways to craft new boundaries that added more Republican-friendly districts.

But the 2011 maps never took effect because Texas still needed federal preclearance. A federal court in Washington eventually rejected the boundaries, saying they made it more difficult for voters of color to elect their preferred candidates.

Meanwhile, minority rights groups filed a separate challenge that slowly churned through courts. Just ahead of the 2012 primary elections, a three-judge panel in San Antonio ordered tweaks to the House and Senate maps, which were initially meant to be temporary as litigation continued.

Soon, Shelby struck.

A day after the Supreme Court's 2013 ruling, Gov. Rick Perry signed off on legislation that made the court-ordered maps permanent, with minimal changes. Then-Attorney General Greg Abbott, Perry’s eventual successor, urged the move, which further complicated the legal case. Those are the maps currently in use.

Minority-rights groups argued that the 2013 maps still fell far short in addressing voting rights violations that the judges flagged in their previous rulings, and they called the state lawmakers’ decision to adopt the court-drawn maps another effort to minimize the political clout of voters of color.

The state has countered that the Legislature could not have sought to discriminate because they adopted the court-drawn map. But the San Antonio panel agreed with plaintiffs in a pair of rulings in August.

The court invalidated two congressional districts and nine state House districts where the judges found intentional discrimination against minority voters. One ruling called the state's 2013 redistricting strategy "discriminatory at its heart."

But the Supreme Court stepped in last month, blocking the panel’s rulings as it considers Paxton's appeal. Instead of heading to court to redraw the maps, attorneys for Texas and its legal foes will spend the coming months filing fresh legal briefs in the prolonged fight.

The state, which has spent millions of taxpayer dollars defending the maps, has lamented seemingly endless litigation — even if the slog has benefited Republicans in some ways.

In a recent filing with the Supreme Court, Paxton's office repeatedly scolded the San Antonio-based judges overseeing the case for taking years to rule. Attorneys for the state criticized the “inexplicable delay” by the panel and accused it of using “delay tactics to deprive” Texas of a resolution before the 2018 elections.

“The long timeline in this redistricting litigation underscores why courts shouldn’t be in the map-drawing business,” Marc Rylander, a Paxton spokesman, said of the long litigation timeline. He described the Legislature’s 2013 adoption of court-drawn maps as an effort to resolve the legal morass.

“But here we are four years later still litigating the validity of court-adopted maps,” Rylander added. “We are grateful the U.S. Supreme Court has now stayed the lower court proceedings to examine whether this baseless, endless litigation should be over.”

Minority rights advocates counter that they face greater harm as the case stretches longer.

“In redistricting cases — when you’re talking about it starting all over every 10 years — to go years without a remedy is really critically injurious to voters in the state,” said Riggs, one of the plaintiffs' attorneys. “We’re certainly feeling the hurt from the loss of Section 5, and it’s not just in Texas, but it’s certainly worse in Texas.”

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