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Long-winding Texas voting rights litigation spotlights Gov. Greg Abbott's role

As Texas risks a return to federal oversight of its election laws, Gov. Greg Abbott could face increased scrutiny of his role in advising on and defending redistricting maps and a voter ID law that could ultimately be struck down as discriminatory.

Gov. Greg Abbott speaks with reporters after voting early in the constitutional amendment election Wednesday at the Travis County Courthouse.

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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Days before Martin Luther King Jr. Day, the scene that played out among the Greater Arlington Missionary Baptist Church’s wooden pews was, in some ways, reminiscent of the civil rights movement from decades before.

Civil rights activists and social justice advocates had gathered last week to plan a protest. They talked about the fight for equity and the importance of standing up for their community. And they discussed the role of a collective voice to draw attention to the grievances laid out by the NAACP’s Arlington branch over the selection of Gov. Greg Abbott as the North Texas MLK parade’s honorary grand marshal.

Abbott “has done more to damage and undermine African-American and Latino civil and voter rights” than any modern-day governor, the NAACP-Arlington said. It pointed, in part, to the role of Abbott, a former attorney general, in both defending and advocating for redistricting maps and strict voter ID requirements that have been tangled up in court for years over concerns they discriminate against Texans of color.

Abbott’s response to that criticism came in a tweet, saying that the parade would be a “worthy celebration” and that he served as governor for all Texans. “I’m a Christian, I’ve committed my life to ensuring justice, I come in peace,” Abbott wrote.

But amid the controversy surrounding Abbott’s selection, sponsors had backed out of the parade, leaving organizers tens of thousands of dollars short of the necessary funds for an event permit, and Abbott’s parade appearance was over before it began.

While some criticized the local NAACP for shunning the governor, those at the church celebrated the turn of events, joining hands and singing a popular freedom song with a slight adjustment: “Go and tell the governor, we shall not be moved. Go and tell the governor, we shall not be moved. Just like a tree that's planted by the water. We shall not be moved.”

The controversy over the MLK parade could very well be chalked up to a local dust-up. But it is also emblematic of the scrutiny Abbott has faced as the high-profile court battles over the validity of some of the state’s electoral measures near their seventh year of litigation. In both cases, Texas is risking a return to federal oversight of its election laws. Such an outcome would only intensify the scrutiny of Abbott, who has had an outsized role in advising on, defending and advancing measures that could ultimately be struck down as discriminatory.

“Greg Abbott as attorney general was the mastermind of both a failed redistricting plan that has intentionally discriminated against minority voters, and he was also the chief architect of clearing a voter ID proposal that was also found to be discriminatory,” said former state Rep. Trey Martinez Fischer, a Democrat who served as the chair of the Mexican American Legislative Caucus, a plaintiff in lawsuits against both measures. “The fact that he’s governor now doesn’t give him an escape from liability or responsibility for setting that tone.”

Abbott’s tenure as attorney general — the the state’s top lawyer — overlapped with the 2011 legislative session, when Republican lawmakers redrew the maps of congressional and state House and Senate districts to shore up their control of the state. That same year, they also passed what would be considered one of the nation’s strictest voter ID laws.

As AG, Abbott — whose office did not respond to multiple requests for comment for this story — was not responsible for passing either measure. But he advised lawmakers as they considered the maps and voter ID requirements, ultimately giving the measures his legal blessings.

Since then, numerous court rulings have found that the state ran afoul of the Constitution or federal voting protections for voters of color in enacting both measures. Pointing to those rulings, opponents have argued that Abbott is behind some of the most egregious legal advice given to the Legislature.

Abbott’s team has more recently downplayed his advisory role in drawing up the embattled legislation. But after the 2011 legislative session, his office asked the Department of Justice and a special three-judge panel in Washington, D.C., to greenlight the new voter ID law and the redrawn maps. Back then, the state was still required by the Voting Rights Act to obtain federal approval of changes to its election laws, a safeguard for minority voting rights called preclearance.

But Abbott was unable to speedily obtain preclearance from the DOJ and the D.C. court, which determined that Texas had not proved the measures would not discriminate against voters of color. And the cases — and Abbott’s involvement — would only grow more complicated as he continued to defend the state against legal challenges back home.

In 2012, amid legal squabbling on the redistricting front ahead of an election, a federal three-judge panel in San Antonio ordered interim maps for congressional and state House districts. The parties in the case were instructed to negotiate fixes to potential legal violations in the maps while deferring to lawmakers’ preferences in the original boundaries.

Abbott’s office “agreed to a number of fixes” to the maps and didn’t appeal that interim plan to the U.S. Supreme Court — a move that reflected Texas’ “willingness to some degree to increase minority voting strength,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Educational Fund and one of the attorneys who has represented plaintiffs suing the state in both cases.

The court at the time warned that the interim maps were still subject to revision. But Abbott in 2013 urged state leaders and lawmakers to adopt the interim maps because that would “insulate the state’s redistricting plans from further legal challenge,” Abbott wrote in a letter to House Speaker Joe Straus that’s often referred to in the litigation. When the Legislature gaveled out that May without acting on the maps, it was at Abbott’s urging that then-Gov. Rick Perry immediately called lawmakers back to approve the maps during a special session.

The AG’s office has since defended the controversial redistricting maneuver, saying it was only acting on maps the court itself had approved. But federal judges who spurned the state’s defense of the 2013 move last year were critical of Abbott’s strategy and his belief that “any discriminatory intent and effects remaining in the 2013 plans, however harmful, would be safe from challenge.”

“This strategy is discriminatory at this heart and should not insulate either plan from review,” the judges wrote.

Last year, Abbott spokesman John Wittman said the governor had “no concerns whatsoever” about rulings against the state that are still being appealed. Instead, he said Democratic lawmakers were “seeking to undo legislative decisions they disagree with by turning to activist judges” and accused Democrats of fueling the voting rights dispute with “phony cries of racism.”

The U.S. Supreme Court could have the final word on the issue this year. The high court announced last week it would hear the state’s appeal of the three-judge panel’s findings of intentional discrimination by state lawmakers, unconstitutional racial gerrymandering and violations of the Voting Rights Act.

The voter ID case ran on a different timeline, but Abbott was still key to its implementation.

Minutes after the 2013 announcement that the U.S. Supreme Court was axing the portion of the Voting Rights Act that required Texas to obtain preclearance of its election laws, Abbott tweeted that the state’s voter ID law should go into effect immediately.

His office continued to defend the law in court as Abbott began his campaign for governor that summer. A district judge in Corpus Christi would eventually rule in 2014 that not only did the law have a racially discriminatory impact but that lawmakers had crafted it to intentionally discriminate against voters of colors who were less likely to have the required IDs to vote.

Abbott’s successor, Ken Paxton, inherited the litigation the following year as the case made its way through the appellate process at the U.S. 5th Circuit Court of Appeals. A three-judge panel and then the full 5th Circuit, which is considered to be among the country’s most conservative appellate courts, eventually ruled that Texas lawmakers discriminated against voters of color by enacting the 2011 law.

The case made its way back to the lower court, where a federal judge drew up a temporary fix to the law for the 2016 elections. Abbott re-emerged as a key player in the state’s legal strategy during last year’s legislative session when lawmakers again hoped to adopt an interim fix amid ongoing litigation but were up against a series of bill-killing deadlines. Just an hour before a key deadline, Abbott issued an emergency declaration that helped push the voter ID legislation onto the House calendar for a crucial vote to adopt the legislation.

The 5th Circuit is now considering whether lawmakers discriminated on purpose in crafting the 2011 bill and what the Legislature’s 2017 revisions mean for the litigation.

Almost seven years and millions of dollars in legal fees later, the two cases are still far from being resolved. But with multiple findings of intentional discrimination by lawmakers now under consideration, the specter of a return to federal preclearance has extended the close examination of lawmakers’ actions to Abbott’s role in advising on and defending the measures that could land Texas there.

After nixing the portion of the Voting Rights Act that required federal oversight of Texas’ election laws, the Supreme Court left open the possibility that future, purposeful discrimination could require states to face federal supervision of new election laws.

Legal experts have said Texas is near the top of the list of those most at risk of being put back under preclearance, though they add that persuading  a majority of the high court to put Texas back under preclearance wouldn’t be easy.

As the cases continue to go through the legal system, it appears that Abbott — like other Republicans — is likely to continue benefiting politically from the litigation in spite of criticism from groups like the Arlington NAACP.

“I certainly understand why it is politically that he would support both the Republican redistricting plan and the voter ID plan,” said former Republican state Rep. Todd Smith who served in the Legislature for more than a decade. “He is a Republican and so the allegations that they’re making against him are allegations that could be made against any Republican.”

Recent polling by The University of Texas and the Texas Tribune showed that 47 percent of Texans do not believe the state’s election system discriminates against racial and ethnic minorities. Among Republicans, that figure goes up to 78 percent.  

Smith, who supported both the redistricting maps and the voter ID bill in 2011, says he experienced Republicans’ political affinity toward the voter ID debate when he unsuccessfully attempted in 2009 to author less severe voter ID legislation. Despite virtually no evidence that in-person voter fraud is rampant as Republicans leaders have espoused for years, the divisive issue motivated Republicans because of its viability on the campaign trail, Smith said.

“There’s just no downside,” Smith said.

Disclosure: The University of Texas has been a financial supporter of The Texas Tribune. A complete list of Tribune donors and sponsors is available here.

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