Last night I linked to the extensive ruling and findings of fact and conclusions of law in a very long-running dispute about whether Texas’s congressional districting were a violation of the Voting Rights Act and/or the Constitution. I have now had a chance to give an initial review to the opinion. I believe this is a major victory for voting rights plaintiffs (and the United States) in proving that some of the congressional district plans violated Section 2 of the Voting Rights Act, some were unconstitutional racial gerrymanders, and some were passed with racially discriminatory intent. The ruling, if the Supreme Court allows it to stand, will lead to new maps that increase minority voting representation, helping both Hispanics and Democrats in Texas. There is good reason to believe the Supreme Court would allow this ruling to stand, as it closely tracks Justice Kennedy’s views of the issues in this area. And perhaps most importantly, the ruling provides the predicate to put Texas back under federal approval for its voting rules, for up to 10 years, either in this case or in the pending Texas voter id case. (The one caveat here is that it would be the AG Sessions’ DOJ which would do the preclearance, and I would not expect them to aggressively enforce the non-discrimination requirement). Further, as we are getting close to the end of the decade, this process will soon start again, only this time (unless preclearance is put in place in time) without federal oversight over the plans to start.
Some more detailed thoughts below.
1. Nuance and detail. The majority engaged in an extremely careful, fact intensive view of the record. It was not just that all the plaintiffs’ claims were accepted or rejected. The court looked very carefully at each claim, and at the details of each district and the alternatives. In examining majority Hispanic districts in “South-West” Texas for example, the court looked not only at the number of Hispanic voters and their turnout, but also whether the plans joined Hispanic voters who had little in common with one another as a matter of economy and geography. This tracks the approach of Justice Kennedy in the Supreme Court’s 2006 LULAC case. The care with which the majority approached these issues makes it quite likely that a majority of the Supreme Court will accept all or most of these findings. Judge Smith’s dissent does not engage in a detailed counter-analysis to provide a hook for a contrary conclusion. He lays all of his firepower on the claim that the issue is moot, and it certainly does not appear moot on at least the claim for intentional discrimination under Section 3 (as I explain below). On the merits, Judge Smith seems to think it is all politics, and not race (more on that below too).
2. Bail in. It probably is not obvious to those not steeped in this area, but the big fight here is not about these particular districts (although that is important) but whether Texas gets put back under Section 5 preclearance for up to 10 years. That is possible under Section 3, the “bail-in” provision of the VRA which gives a court the ability to impose preclearance after a finding of intentional race discrimination. That finding is here, and the case is still going to go forward on that issue (as well as some other issues). Further, the finding of intentional race discrimination will almost certainly be relied on if, as I expect, the trial court in the Texas voter id case, finds intentional racial discrimination and orders bail in. So this is huge. (The caveat is how a Trump DOJ would enforce such rights if Trump is still in office. I’m not optimistic, and there’s no appeal of a DOJ decision to grant preclearance. Preclearance of post-2020 redistricting will depend on who wins the 2020 presidential elections.)
3. Race or party. I have been writing a lot about the race or party question: what to do about claims of racial discrimination when, as in the American South, race and party are so closely correlated. The majority approach, is subtle and sophisticated on this question, and seems to fall mostly on the party as a proxy for race (“party as race”) approach to the question. When you make it harder for minority voters to exercise political power for your own political reasons (such as protecting incumbents or your party), this counts as intentional race discrimination. Judge Smith takes the “race or party” approach, and he believes he knows what’s “really” going on: this is all about party, rather than race. It is either blind to the realities or ignoring the fact that these two criteria are really inseparable in Texas.
4. The remedy and what comes next. The trial court does not order anything to happen right now. The parties will fight about the remedy. Likely Texas will get a chance to redraw districts with some deference to Texas as to that which is not a violation. The parties will fight over the plans. And this will get dragged out. But presumably there will be new maps in place for the 2018 congressional elections, unless the Supreme Court intervenes. I fully expect Texas to try to get the Supreme Court to intervene in the interim. At most these lines would last 2 elections, and then we are back to a new round of redistricting. And this shows what is lost by preclearance. We’ve now had three elections that arguably should never have taken place under these lines.
5. The new role of DOJ. As in the Texas voter id case, I expect the United States to change sides, and now side with Texas. The private voting rights plaintiffs will continue to push this litigation, however. The hard part, as mentioned above, is how DOJ would manage new preclearance if there is bail-in.
6. Judge Smith’s attack on the DOJ. I mentioned last night the attack by Judge Smith on the Obama DOJ. This is very unusual and intemperate, but it reflects the tremendous hostility on the right to how the Obama DOJ handled things, much like how the left hated the Bush DOJ. It is now pretty clear that DOJ is the focus of a lot of the Administration’s priorities and fights, and it is no longer above the political fray (if it ever was).
7. Mootness. If the Supreme Court agrees with Judge Smith that the case is moot (at least as to the drawing of the districts, but maybe not as to bail in), then this case would go away. I did not find the mootness claim of Judge Smith convincing, but it does provide a technical way out for a Supreme Court to side with Texas.
8. A victory, but danger ahead. This is a huge victory for voting rights plaintiffs, but I am increasingly pessimistic in the medium term. I expect the post-Kennedy Gorsuch Supreme Court to be quite hostile to voting rights claims, allowing much partisan gerrymandering and minority vote dilution without adequate court supervision. Much will depend upon what Justice Kennedy leaves in place before he goes, and how quickly a new conservative majority would look to dismantle it.
[This post has been updated.]