Friday, December 23, 2011
Great News for Minority Voters in Texas
In a key pretrial order, a panel of federal judges in Washington D.C. found that the state of Texas used an inappropriate standard to determine if districts would be able to elect minority candidates and said that the state’s lawyers had confused and misapplied Supreme Court precedent and the Voting Rights Act in a bid to make their case.
The judges’ 44 page opinion, issued late Thursday night, expounds upon the court’s previously brief finding that the state had used an improper standard to determine if minority voters would be disenfranchised by the Legislature’s plans and could complicate Texas Attorney General Greg Abbott’s efforts to get the U.S. Supreme Court to overturn court-drawn interim redistricting maps.
The preclearance trial is scheduled to begin Jan. 17.
The three judges — two appointed by Republican President George W. Bush and one appointed by Democratic President Barack Obama — wrote that the state confused two key Voting Rights Act legal standards in arguing that the court should grant preclearance.
“Texas perceives “ability” and “opportunity” as interchangeable, but they represent different concepts that serve different purposes,” the judges wrote in their order.
They also found that standard used by the state to determine if a district could elect a minority candidate was overly simplistic.
“…Historical discrimination against Hispanics in Texas has, in some areas of the State [sic], continued to depress their educational and economic conditions such that the mere attainment of citizen voting-age status might have no real effect on their ability to elect representatives of choice,” the judges wrote, citing a legal brief filed by Latino Redistricting Task Force, which is represented by the Mexican American Legal Defense and Education Fund.
They continued: ” Such a background requires a more complicated retrogression analysis than Texas wants this Court to approve, but it is part and parcel of discerning whether minority voters will be effective in their exercise of the electoral franchise.”
The D.C. Court said that the state should have used a more “comprehensive” standard to evaluate if a district would be able to elect minority candidates. That standard, they wrote, should include consideration of population shifts and voter turnout.
Furthermore, the court wrote that coalition districts, where minority and white voters elect the same candidates (like Austin’s 25th Congressional district, which is currently represented by Lloyd Doggett), are protected from being dismantled by the preclearance provisions of the Voting Rights Act.
Abbott argued in court filings with the Supreme Court that the court-drawn interim redistricting maps — created by a panel of federal judges in Texas that overheard a series of separate but related redistricting lawsuits — didn’t show enough deference to the state’s Republican dominated redistricting maps.
He argued that the Texas court should have used the Legislature’s maps as the basis for the interim-redistricting maps unless the state’s maps were denied preclearance or it was likely the state’s maps would be denied preclearance.
Rick Hasen, an election law professor at the University of California Irvine, wrote on his blog very late last night (pacific time) that the D.C. Court’s rebuke of Texas in its pretrial order could heavily influence the Supreme Court :
…[T]hat fact could be relevant to the Supreme Court’s forthcoming hearing and decision on the interim plan. If the opinion convinces Justice Kennedy (and the Court liberals) that Texas’s proposed plans likely should not be precleared, then that is good reason these plans should not be deferred to by the courts in crafting an interim plan. Texas in its brief filed yesterday conceded there should not be deference to a proposed (but unprecleared) plan when it is likely to believe the plan should not be precleared. The opinion today will be thrown back in Texas’s face in the second round of briefing before the Supreme Court.
Oral arguments at the Supreme Court over the interim-redistricting maps are scheduled for Jan. 9