Trial begins in case targeting Texas' statewide elections of judges

CORPUS CHRISTI — El Paso lawyer Carmen Rodriguez and Juanita Valdez-Cox, a community organizer in the Rio Grande Valley, live hundreds of miles from each other, but they share an electoral grievance that could upend the way Texans fill seats on the state’s highest courts.

For years, Rodriguez and Valdez-Cox have noticed that campaigning for the Texas Supreme Court and Court of Criminal Appeals hardly reaches their corners of the state. It’s left them feeling so neglected and undermined as voters that they decided to the sue Texas over the statewide election system it uses to fill seats on those courts.

“I think every vote should count and should have equal weight as much as possible,” Rodriguez testified in federal court Monday on the first day of a week-long trial in a case challenging the state’s current election method for the Texas Supreme Court and Court of Criminal Appeals. But those campaigning for those seats hardly make their case to El Paso voters, Rodriguez added, so “they don’t seem to need our vote.”

That sentiment is a key component of a lawsuit — filed on behalf of Rodriguez, six other Hispanic voters and Valdez-Cox’s organization, La Union del Pueblo Entero — that alleges the statewide method of electing judges violates the federal Voting Rights Act because it dilutes the voting power of Texas Hispanics and keeps them from electing their preferred candidates. U.S. District Judge Nelva Gonzales Ramos has set aside the rest of the week for the trial, during which the plaintiffs’ lawyers will work to convince Ramos that Texas should adopt a single-member approach, similar to those employed by some city councils and school boards, that would carve up districts geographically in a way that could allow for Latino-majority voting districts.

“The courts cannot be the great equalizer of our social fabric when one group — Latinos — are disadvantaged in the election process,” Jose Garza, an attorney representing the voters, said in his opening statement Monday.

Throughout the day, Garza and other attorneys representing the voters suing the state called up individual plaintiffs and election law and history experts to help make their case that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters.

Lawyers for the Texas attorney general’s office, which is representing the state in court, will offer up their own experts later in the week in hopes of dispelling those claims. The state’s lead attorney, Patrick Sweeten, on Monday provided a preview of their arguments when he described their defense and the plaintiffs’ arguments as “two ships passing in the night” because the state’s evidence will show that the plaintiffs cannot meet their legal burden of proving a Section 2 violation.

The state is also expected to call up an expert witness who will argue that single-member districts would “disempower more Hispanic voters than they could potentially empower” because they would only be able to vote for one seat on each high court instead of casting a ballot for all 18 seats.

Plaintiffs’ lawyers spent a large portion of the day arguing that that point would only hold up if you assumed Latinos had the opportunity to elect their preferred candidates to begin with.

Though voters’ preferred candidates don’t have to be of their same race or ethnicity, that is often the case for Latino voters, plaintiffs’ lawyers argued. They called up an expert witness whose report showed that Latino candidates are less successful in statewide judicial races than non-Latino candidates and that the current system has not resulted in the election of candidates preferred by Latino voters.

In fact, the lawyers pointed out, no Hispanic candidate has won election to either court without first being appointed by the governor. Judges on the state's high courts serve staggered six-year terms. There are only two Hispanics currently on the courts, and one of them is not running for re-election.

Court of Criminal Appeals Judge Elsa Alcala explained that her decision not to run for re-election this year was influenced, in part, by the presumption she would draw a Republican primary challenger “because someone would view my Hispanic unfamiliar surname as a liability.” It was an issue, Alcala explained, that came up when she campaigned for her seat in 2011.

Alcala refused to testify unless ordered by the court and instead offered written answers to questions from the plaintiffs’ lawyers that were read out loud in the courtroom. Among those questions was one asking what message would be sent to the Latino community if the high courts lacked adequate Latino representation.

“I believe that when there are no Latinos on a high court the message that is conveyed is that there are no qualified Latinos who are capable of serving in this capacity,” Alcala wrote. “It sends a message that only Anglos are qualified and capable of serving in this important role.”

In the following days, plaintiffs’ lawyers will call up two Hispanic candidates who were unsuccessful in their statewide judicial campaigns. They’ll also call up an expert who will testify that racially polarized voting is a hallmark of the current system and results in the electoral preferences of Texas Latinos, who are a “politically cohesive” voting group, to be regularly trumped by a white majority. Another expert will testify on how at-large judicial elections interact with the state’s history of state-sponsored voting discrimination and other social factors that keep Hispanics from effectively participating in the political process.

The lawsuit over judicial elections has largely flown under the radar since it was first filed in 2016, even as two other Texas legal fights over the disenfranchisement of voters of color — through the drawing of the state’s political maps and voter identification requirements — have wound through the courts. Ramos is behind a decision that struck down the voter ID law, which has since been appealed to the 5th U.S. Circuit Court of Appeals.

But this case comes with the potential to dismantle the state’s long-held — and long-disputed — system of statewide judicial elections to courts that serve as the final authorities on civil and criminal matters in Texas.

Texas has adhered to that controversial system for nearly 150 years, but up until now the highest-profile rebukes have had less to do with concerns about racially motivated voting suppression than with standards of judicial impartiality.

Some of the most heated criticism of the system has come from current and former justices, who argue that having to campaign as partisans can undermine their perceived judicial impartiality once they’re seated on the bench. Texas is one of 38 states that elect judges to its highest courts, but one of only seven that require members to run with a political party.

In court on Monday, partisanship played a different role in the legal bickering over the state’s electoral system. Lawyers for the state argued that the issue is partisan, not racial: Hispanic candidates lose because of party preferences, not because of disenfranchised voters.

Projecting blue and then red boxes in tables tracking the political affiliation of judges and justices on the high courts over the decades, state attorneys pointed out that the state’s two highest courts have moved entirely to Republican hands in accordance with a statewide shift in partisan preference — Democrat-packed in the 1970s and 80s, with a turn to the right since the mid-1990s.

“They’ve followed a decidedly partisan pattern,” Sweeten said. “The results show us that partisanship explain these patterns — not race.”

Later in the day, another state attorney quizzed Valdez-Cox, the RGV community organizer, about the Hispanic Republicans who had won election to both courts after being appointed and whether any of them were considered Hispanic voters’ preferred candidates.

“I don’t think we were given the opportunity to prefer,” Valdez-Cox shot back. “They didn’t come to South Texas.”

The trial is expected to continue through Friday. A ruling from Ramos isn’t expected for at least a few weeks, making it highly unlikely that Ramos’ decision will affect this year’s statewide judicial elections. The losing party will almost certainly appeal to the 5th Circuit, where the case could be tied up for months or years.

Emma Platoff contributed to this report.