Analysis: Despite its record, Texas can remake its political maps without a federal permission slip

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Repeated court findings that Texas has intentionally discriminated against minority voters aren’t enough to impose federal oversight when it’s drawing political maps and writing new election and voting laws.

Three federal judges said so last week. Federal law says states that discriminate in their election and voting laws can be required to get judicial or U.S. Department of Justice approval before changes in those laws take effect. But that’s not automatic, and it might not even be possible, as a practical matter — an important condition spotlighted in a federal court ruling last week.

That federal approval — called preclearance — was required in the Voting Rights Act for states with histories of racial discrimination in their election and voting laws. For years, new redistricting maps, changes in voter requirements and changes in laws governing elections had to be approved by either the federal courts or the Justice Department before taking effect.

But in 2013, the U.S. Supreme Court effectively struck that provision of the law, ruling that it had served its purpose. The court left in place a “bail-in” provision that allows the courts to require preclearance when states get out of line. “The Federal Government does not ... have a general right to review and veto state enactments before they go into effect,” the court said at the time.

A group of plaintiffs in Texas — civil rights organizations and others — asked the court to bail the state in, to require it to seek federal permission since it has been passing laws the courts found discriminatory.

The three-judge panel that got the case said they were right — that the state has intentionally discriminated in redistricting and other election laws. But the judges said they can’t order the state back into preclearance requirements.

The state has discriminated, they said, but not in a way that triggers future federal supervision.

In earlier rulings, the courts found that Texas discriminated when it drew new redistricting maps in 2011. A three-judge panel — the same one that ruled last week — also found that some of the discriminatory intent in those 2011 maps had made it into a revised map adopted in 2013 — “that the Legislature intentionally maintained the racially discriminatory aspects of the 2011 Texas House and Congressional plans when it enacted the interim plans in 2013, and that its true purpose in enacting the plans was not to comply with the VRA but to insulate itself from further liability for the discriminatory aspects of the plans, including potential bail-in relief.”

The Supreme Court disagreed, saying the discriminatory taint in the first maps didn’t poison the revisions. In their opinion last week, the three federal judges in Texas grumbled a bit but fell in line.

“Although this Court may disagree about the lingering effects of discrimination from the 2011 plans, the clear import of the Supreme Court’s opinion is that nothing further remains to be remedied, and this Court is bound to follow that opinion,” they wrote.

“To be clear, however, the Court has grave concerns about Texas’s past conduct,” they added. “Given the fact of changing population demographics, the likelihood increases that the Texas Legislature will continue to find ways to attempt to engage in ‘ingenious defiance of the Constitution’ that necessitated the preclearance system in the first place.”

There you go. The judges say the state discriminated before, that Texas lawmakers will continue to do what they’ve been doing for years — taking advantage of racial and political minorities when it comes to drawing political maps and enacting election and voting laws — and that there’s not a lot the judges can do to prevent it.

“Texas would be well advised to conduct its redistricting process openly, with the understanding that consideration of bail-in is always an option for whatever federal court or courts may be tasked with review of future legislative actions. On this record and under current law, however, bail-in is denied,” they ruled.

Federal judges can still overturn discriminatory maps and laws, and they haven’t been shy about that when it comes to Texas. The court didn’t say the state could do whatever it wants — just that it doesn’t have to have the federal government approving its work before it proceeds.

And with redistricting on the menu for the next session of the Texas Legislature in 2021, lawmakers will be able to draw new maps without looking for permission from Washington, D.C.