Texas Redistricting Déjà Vu

by Hans A. von Spakovsky

On September 19, the Justice Department’s Civil Rights Division filed an answer in the state of Texas’s lawsuit seeking preclearance of the state’s four new redistricting plans under Section 5 of the Voting Rights Act. DOJ indicated it had no objection to the state’s proposed redistricting for the board of education and the state senate, but the redistricting plans for the state house and congressional districts were another story.

DOJ found the latter plans objectionable. It denied that the proposal “maintains or increases the ability of minority voters to elect their candidate of choice in each district protected by Section 5.”

One of the small number of states covered by Section 5, Texas cannot make any change to its voting laws without going through an administrative review by the Justice Department or getting preclearance from a federal court in the District of Columbia. Such voting changes include redrawing district boundaries after the census shows population shifts. Texas took the smart path of filing a declaratory judgment action in federal court, rather than relying on the administrative review process with the highly politicized Civil Rights Division, whose past machinations and legal misjudgments have earned it repeated rebukes in the courts. The way DOJ is acting in this case raises the possibility that this may happen again.

I saw this first-hand during the last round of congressional redistricting in Texas, when I worked as the voting counsel in the Civil Rights Division. Ten years ago, eight out of 32 congressional districts in Texas were considered protected “majority-minority” districts in which blacks or Hispanics were a majority of the voters. Section 5 has been interpreted to require preservation of the status quo for racial minorities in a redistricting plan, i.e., no retrogression. When Texas put together its new congressional redistricting plan in 2003, the plan preserved the status quo with six Hispanic districts and two black districts. It also created a third black district even though the state was not required to do so.

But that wasn’t good enough for the liberal, fiercely partisan lawyers who predominate the career civil service positions in the Voting Section of the Civil Rights Division. Despite the fact that a federal court had previously found there were only eight majority-minority districts in Texas, these zealots insisted there were eleven. They produced (and later leaked to the press in violation of their professional obligations) a legal memorandum that not only completely ignored the court findings, but was also riddled with factual and legal inaccuracies, misrepresentations, and poor legal analysis.

As Abigail Thernstrom wrote in her recent book, Voting Rights — And Wrongs, it was a “rambling, barely coherent memo” written by “ideologically driven” career staff.  The memo included the ludicrous claim that Martin Frost’s congressional district, which was barely 25 percent black, was a protected majority-minority black district. The Supreme Court dismissed this silly assertion with alacrity in a separate voting rights case in LULAC v. Perry.

By a strange coincidence, the DOJ careerists’ legally erroneous claim that Texas needed to preserve eleven protected districts was exactly the same claim made by Gerry Hebert, a former Voting Section attorney who was representing the congressional Democrats’ interests. Hebert is involved once again in the latest litigation round over the 2011 plan.

Fortunately, in 2003, the political appointees running the Civil Rights Division actually understood the applicable law and the Section 5 legal standard. They rejected the memorandum’s obviously wrong recommendation to object.

That was then; this is now.#more# Texas has gained four new congressional seats as a result of the 2010 decennial reapportionment process. Various left-wing advocacy organizations have complained about the state’s redistricting plan, saying that it provides for no net gain in seats for Hispanics. However, under Section 5, Texas is not required to draw the maximum number of Hispanic districts possible — it only has to preserve the status quo and thus ensure that there is no retrogression in the ability of minority voters to elect their candidates of choice.

The fact that there may be no net gain in congressional districts for Hispanics under the new plan is no basis for the Justice Department to object under Section 5. But then again, the past misbehavior of the career lawyers (now aided and abetted by partisan Obama political appointees) shows that they really don’t care about the applicable law.

Various Latino groups have also filed a separate lawsuit under an entirely different part of the Voting Rights Act, Section 2, claiming that the failure to draw more Hispanic districts to match the increase in the Hispanic population is discriminatory. They base the claim on the proportion of Hispanics in the Texas population. But Section 2, which prohibits the “denial or abridgement of the right” to vote due to race or color, specifically says that “nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.”

A court may or may not find that Texas should have created additional Hispanic districts under Section 2 of the Voting Rights Act. But under a prior Supreme Court decision, Reno v. Bossier Parish, a violation of Section 2 is not a valid basis to deny preclearance under Section 5. If Texas preserved the nine majority-minority districts from the 2003 plan in its new congressional redistricting plan, then the Justice Department has no valid basis for objecting under Section 5 of the Voting Rights Act.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department.

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