Crum: The Prospect of Bailing-in Texas: The Statutory Argument for Bail-in (3)

This is third in a series of guest posts by Travis Crum:

In my last post, I provided an overview of recent bail-in cases. Now I will argue why Texas qualifies for bail-in under Section 3(c).

Given the very long and complex history of this redistricting litigation, a quick timeline is helpful. Following the 2011 Census, Texas enacted new redistricting plans. At the time, Texas was a covered jurisdiction and thus sought preclearance from the U.S. District Court for the District of Columbia. Across the country, a coalition of civil rights groups and the Obama Administration brought a separate Section 2 case in the U.S. District Court for the Western District of Texas. While the preclearance case was pending before the D.D.C., the Texas court drew interim maps to govern the upcoming 2012 election. Texas, however, challenged those maps, and the Supreme Court reversed, holding that the Texas court failed to properly respect Texas’s 2011 districting plans and that those plans should have been modified only to account, in varying ways, for the plaintiffs’ constitutional and statutory claims. The Texas court subsequently drew new interim maps that were used for the 2012 election.

In August 2012, the D.D.C. denied preclearance. As relevant here, the D.D.C. held that the congressional plan had a retrogressive effect and was enacted with discriminatory intent. The D.D.C. also concluded that the state house plan had a retrogressive effect and that the record “strongly suggest[ed]” that there was intentional discrimination. Texas appealed the denial of preclearance, but the case was dismissed after Shelby County absolved Texas of its need to seek preclearance.

In 2013, Texas adopted revised versions of the Texas court’s second-attempt interim maps. Texas’s 2013 maps were used for the 2014 and 2016 elections. Meanwhile, the plaintiffs in the Texas court amended their complaint to challenge the 2013 plans and added a request for Section 3(c) relief.

Following a trial, the Texas court issued a pair of opinions in spring 2017 holding that numerous congressional and state house districts in the 2011 plan violated the Fourteenth Amendment. Notably, the district court found both intentional vote dilution and Shaw violations. In rejecting Texas’s argument that the plaintiffs’ challenge to the 2011 plans was moot, the Texas court relied, in part, on the plaintiffs’ request for Section 3(c) relief.

Then, in August 2017, the Texas court issued another pair of opinions on the 2013 plans. Once again, the Texas court concluded that numerous congressional and state house districts were unlawful. The Texas court held that Texas had not purged the discriminatory taint from the 2011 redistricting plans when it adopted the 2013 plans. The Texas court further found that a state house district was an unconstitutional racial gerrymander, i.e., a Shaw violation.

Earlier this year, in Abbott, a closely divided Supreme Court reversed in part and affirmed in part the Texas court’s holdings as to the 2013 plans. Regarding the finding of intentional discrimination, the Court declared that the Texas court had improperly placed the burden on Texas to prove that it had purged the taint from the 2011 plans when it enacted the 2013 plans. The Court further credited Texas’s explanation that it had adopted (with some revisions) the court-drawn plans in 2013 as a way of ending the redistricting litigation. Accordingly, the Court reversed the finding of intentional discrimination as to the 2013 plans. The Court, however, affirmed the finding of a Shaw violation. The upshot of this lengthy litigation is that Abbott does not disturb the Texas court’s spring 2017 finding of unconstitutional conduct as to the 2011 maps.

Thus, Section 3(c) relief can be based on multiple judicial findings of intentional discrimination in the enactment of the 2011 plans. The Texas court found intentional vote dilution in congressional districts in South/West Texas and the Dallas-Fort Worth area as well as for the state house plan “as a whole” and in eleven state house districts located across Texas. And the Texas court is not alone: the D.D.C. concluded that Texas’s 2011 congressional plan was enacted with discriminatory intent and that there was strong record evidence that the state house plan was similarly flawed. Given this litany of constitutional violations, Texas qualifies for bail-in.

Following Abbott and Veasey, Texas will probably claim that bail-in is unnecessary because it has already “cured” any “taint” from the 2011 plans when it enacted the 2013 plans. As an initial matter, Abbott specifically addresses only the 2013 plans and resolves the analytically distinct question of when discriminatory intent has dissipated. That is a different inquiry from what remedies may be imposed for the initial constitutional violation to ensure that it does not happen again in the 2020 redistricting cycle. The situation here also differs from Veasey in a key respect: that court could assume that federal oversight was unnecessary because the less stringent voter ID law adopted by Texas will govern for the foreseeable future, but redistricting must happen again after the 2020 Census.

In a similar vein, Texas will likely borrow an argument from one of Judge Smith’s dissents and argue that Section 3(c) relief is improper because its 2011 plans were never used in any election. Put simply, no harm, no foul. This argument blinks reality. The reason the 2011 plans were not implemented is the preclearance requirement and the need for interim maps during that proceeding. Texas did not have a change of heart: Texas would not have enacted the 2013 plans—or it’s less stringent voter ID law—but for the litigation brought by civil rights groups and the Obama Administration. The point of preclearance is to deter unconstitutional conduct. Texas’s repeated failures to adopt non-discriminatory redistricting plans over the past few decades epitomizes the need for federal oversight.

Now that it’s established that Texas qualifies for bail-in, I will address certain constitutional arguments in my next post.


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