This month, the U.S. Supreme Court will hear arguments over Texas’ congressional and state House maps. But you don’t have to wait until then to see the frustration boiling over in the long-winding litigation.
Everyone in the Texas redistricting fight is pissed off.
In their latest brief to the U.S. Supreme Court, the voting and minority rights groups challenging Texas’ political maps painted Republican state lawmakers as “opportunistically inconsistent in their treatment of appearance versus reality.”
Pointing to the lawmakers’ 2013 adoption of a court-drawn map that was meant to be temporary, the groups chronicled the actions as “a ruse,” a “shellgame strategy” and a devious “smokescreen” meant to obscure discriminatory motives behind a previous redistricting plan.
Channeling their anger toward the lower court that found lawmakers intentionally discriminated against voters of color, state attorneys used a February brief to denounce the court’s ruling as one that “defies law and logic,” suffers multiple “legal defects” and “flunks the commonsense test to boot.”
“There are few things a legislature can do to avoid protracted litigation over its redistricting legislation,” state attorneys wrote in the opening lines of their brief. “But if the nearly inevitable litigation comes to pass, one would have thought there was one reasonably safe course available to bring it to an end — namely, enacting the three-judge court’s remedial redistricting plan as the legislature’s own. Think again.”
The legal fight between the state and its legal foes, which include several voters of color, has been churning through the courts since 2011. That was when lawmakers embarked on redrawing the state’s congressional and legislative districts to account for explosive growth, particularly among Hispanic residents, following the 2010 census.
Those maps never took effect because Texas, at the time, was still required to get federal approval of changes to its political maps before using them in elections. A federal court in Washington eventually rejected the boundaries, ruling they violated federal safeguards for voters of color. But by then, a three-judge federal panel in San Antonio had ordered up interim maps for congressional and state House districts to be used for the 2012 elections.
The San Antonio court at the time warned that the interim maps were still subject to revision. But state lawmakers in 2013 adopted those maps as their own, with few tweaks.
That move, the state contends, was a “conciliatory act” in which the Legislature “embraced the court’s maps for the perfectly permissible reason that it wanted to bring the litigation to an end.”
“In the State’s telling, there was a brief, shining moment in 2013 when Texas history reversed course and the Texas Legislature fell all over itself to conform state conduct to a federal court’s provisional observations. The district court rightly saw through the 2013 masquerade.”
The San Antonio panel has so far sided with the plaintiffs in rulings that found fault with both the 2011 and 2013 maps. The court invalidated two congressional districts and nine state House districts where the judges found intentional discrimination against Hispanic and black voters. They flagged areas of the state where the boundaries today remain unchanged between the two maps.
The court took particular issue with the state’s argument that it could not be penalized for its past discrimination, calling its 2013 strategy “discriminatory at its heart.”
In challenging that finding, state attorneys told the Supreme Court that “there is absolutely no support for the novel proposition that the same map can be constitutional when imposed by the court, but unconstitutional — let alone intentionally discriminatory — when embraced by the legislature.”
But accepting that argument, the plaintiffs argue, would amount to inviting legislatures to “manufacture” new legislative records when facing legal challenges to “blatantly discriminatory laws.”
“This court should not permit Texas to launder its tainted districts,” the plaintiffs wrote.
Also looming over the case is the possibility that a finding of intentional discrimination could place Texas back under federal supervision of its election laws through a process known as preclearance. The U.S. Supreme Court freed Texas and several other jurisdictions from that requirement in 2013, but it left open the possibility that states could be bailed back in if they intentionally discriminated in the future.
If the latest briefs are any indication, expect to hear frustration over the nature of the long-winding litigation. By the time this litigation is all over, a majority of this decade’s elections will have been conducted under congressional and state House maps that have failed to receive the blessing of the courts from the moment they dropped.
In fact, the next census — and with it, a completely new set of political maps — is already on the horizon. It’s just one election cycle away.
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