Just before the holiday, Rick posted a Texas redistricting update: the trial court issued a briefing order asking what’s left of the case after SCOTUS remand. Rick thought “there’s not much left to do.” But while most of the fireworks may be over, the few remaining may have a pretty big bang.
He’s right that there’s little fight left over in the current maps. One district – State House District 90, in Fort Worth – has to be redrawn (and, necessarily, some of the districts that border it). Barring another re-redistricting, the other districts are pretty much set until 2021.
But another part of the case is very much live, and immensely important. Two three-judge federal courts found that when Texas drew lines in 2011, it intended to discriminate against its Latino citizens. Indeed, Texas did almost the same thing — in the very same area of southwest Texas — that 2006-era Justice Kennedy said smelled of intentional discrimination. That’s recidivism, in what we purport to understand as one of government’s worst offenses against its own constituents. And that’s on top of a 2011 voter ID law also found to be intentionally discriminatory. Not to mention state history beyond this decade.
The facts behind those findings don’t vanish. The latest holdings of the 5th Circuit (in the ID case) and the Supreme Court (in the redistricting case) expressly disclaimed any assessment of the 2011 laws. Indeed, both of those decisions have to do with new statutes passed by the Texas legislature only after litigation set in.
On their own, these new cases teach a dangerous lesson: there are no meaningful consequences to intentional discrimination. These cases encourage legislators who perceive a benefit from discriminating on the basis of race to go ahead and indulge; worst case, they have to redecorate the edges if they get caught, and the longer they can tie up litigation, the more opportunity they have to take advantage in the meantime.
There’s little reason to believe that the legislature that saw advantage in 2003 and advantage in 2011 wouldn’t also see advantage in 2021. Which is why the part of the case that’s still live is so important. There is a specific statutory provision for addressing jurisdictions that can’t keep themselves from intentionally discriminating in the election process: federal supervision under section 3 of the Voting Rights Act – the “bail-in” provision. The day that Shelby County was delivered, I predicted an increase in bail-in filings. And after Shelby County, a bunch of plaintiffs asked to return Texas to preclearance based on the 2011 maps. Indeed, that’s the only real claim that the DOJ ever asserted in the case. (Note: I worked on some relatively minor briefing in the case while at DOJ, but this decision was made far before I arrived.)
Now that SCOTUS let Texas off the hook for the lingering impact of past discrimination, bail-in may be the only remaining practical deterrent for distressingly predictable bad behavior. It won’t affect maps before 2021, but it could have an enormous impact on maps thereafter. And though I can’t predict how the trial court will rule, I’d be shocked if there weren’t a whole lot of fight left. The parties have to advise the court about issues left in the case by August 29. Stay tuned.