Texas recently won a major battle in its congressional and state-legislative redistricting fight. On January 20, the Supreme Court threw out interim maps that had been created out of whole cloth by a three-judge panel in San Antonio, and that, in addition to heavily favoring Democrats, basically ignored the plans drawn by the state legislature. The war goes on in federal court in Texas and the District of Columbia, but the decision was a defeat not only for the NAACP, the League of United Latin American Citizens (LULAC), and other seekers of racial spoils, but also for Eric Holder’s Justice Department.
This case demonstrates the absurdity and fundamental unfairness of Section 5 of the Voting Rights Act (VRA), the supposedly temporary, emergency five-year provision passed in 1965, as well as the way Section 2 of the VRA has been perverted by so-called civil-rights organizations, DOJ, and the courts. They have used the law to make racial gerrymandering the dominating factor in redistricting, and “proportional representation” almost a legal mandate for states that want to avoid expensive and protracted litigation.
Texas is one of nine states covered in whole by Section 5, which essentially places it in federal receivership. Texas has to get administrative approval from DOJ or a federal court in the District of Columbia before it can implement any changes in its voting laws, including its new redistricting plans. Section 5 was supposed to last only five years, and was passed when there was widespread, systematic, official discrimination in parts of the South — a blight that has long since disappeared.
Yet in 2006, Congress renewed Section 5 for another 25 years, cementing in place the continued discriminatory treatment of states under the law. Texas filed a lawsuit in D.C. seeking Section 5 clearance for its redistricting plans under a legal standard that places the burden on the state to show there has been no disparate effect on racial minorities. Texas must prove that it has preserved the status quo — that it has not reduced the number of majority-minority voting districts in Texas. Thus, Section 5 forces states to explicitly take race into account when drawing districts.
At the same time, Texas was sued in federal court in San Antonio under Section 2 of the Voting Rights Act by groups claiming that the state hadn’t created enough new majority-minority districts. Section 2 is the permanent, nationwide provision that prohibits “denial or abridgment of the right” to vote based on race. Section 2 was originally passed to get rid of barriers to registration and voting. Since such barriers no longer exist, it has devolved into a statute used for vote-dilution lawsuits in which plaintiffs such as LULAC claim that a state has not created enough districts where racial and ethnic minorities are a majority of the voters.
In other words, Section 2 is used against states that don’t take race sufficiently into account when they are drawing political district lines. So the statute that was hailed by civil-rights organizations in the 1960s as necessary to end the “sordid business [of] divvying us up by race” in the voting process (as Chief Justice John Roberts said in a prior Texas case) is today used by those same organizations to ensure the sordid divvying up by race in redistricting.
Because Hispanics and blacks make up three-quarters of the population growth of Texas since 2000, LULAC and others are claiming that they should have gotten at least three of the four new congressional districts that Texas received after apportionment. This argument is in direct conflict with a warning in Section 2 that the statute does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.” However, that provision hasn’t prevented plaintiffs or DOJ from making such claims under the veneer of “disparate impact,” wrongly equated with discrimination, or courts from finding against states based largely on such claims.
The San Antonio court refused to allow the state to use the legislature-drawn maps for the upcoming April primary because the federal court in Washington had not yet pre-cleared them under Section 5. The judges simply ignored the political decision of Texas legislators. Without making any finding whatsoever that there was any credibility to the Section 2 violations claimed in the Texas litigation, or that there was any likelihood that LULAC and the NAACP would even prevail, the judges drew up interim maps using their own judgment of what they considered to be “neutral principles that advance the interests of the collective public good” of the citizens of Texas.
This is the very definition of activist judges. Essentially, they’re substituting their own judgment for that of the legislative branch, ignoring the choices of elected representatives. The Texas judges were slapped down by all nine justices of the Supreme Court for their actions. The Texas court, they said, had no business wholly ignoring “the State’s policies in drawing maps . . . without any reason to believe those state policies are unlawful.”
The high court remanded the case, directing the Texas court to be guided by the legislature’s plans “except to the extent those legal challenges [under Section 2] are shown to have a likelihood of success on the merits.” But the Texas court was also directed to take into account the fact that the legislative plans had not yet received “mother-may-I” pre-clearance under Section 5. The Texas court cannot use any parts of the plan “that stand a reasonable probability of failing to gain § 5 preclearance.” So Texas is now caught between the Supreme Court’s reasonable instruction to the lower court not to assume the legislature is guilty of a VRA violation, and Section 5’s unreasonable and likely unconstitutional assumption that the legislature is guilty of a violation unless it can prove otherwise.
The fundamental problem with the way Section 5 and Section 2 are being applied today is plain to see: If Texas had set out to draw new legislative districts based entirely on nondiscriminatory, neutral, traditional factors such as compactness, contiguity, and preserving the lines of local political subdivisions such as cities and counties, it would immediately face numerous claims under the VRA for not taking race into account — the very claims it is facing in the present lawsuits.
The Supreme Court said in Reno v. Shaw that race cannot be the predominant factor in redistricting, but in practical terms, the VRA today requires exactly that. Race must be one of the dominant factors used by states to prevent litigation under both provisions of the VRA by the Justice Department and racial-spoils groups such as the NAACP and LULAC.
The courts all too often grant such claims, helping to promote identity politics and leading to the racial balkanization of Congress and state legislatures. It is a sad perversion of the original intent of the law and the original goals of the civil-rights movement.
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation, a former commissioner on the Federal Election Commission, and the former counsel to the assistant attorney general for civil rights at the Justice Department.