HOUSTON, Texas—This phase of trial of Texas’ redistricting battle, including the House maps, is expected to end on Friday in federal district court in San Antonio. The Department of Justice (DOJ) is using this Texas redistricting lawsuit (Perez v. Perry) to argue that Texas should be subject to the preclearance requirements of the Voting Rights Act of 1965.
It is doing so even though the U.S. Supreme Court held in June of 2013 that Texas and 14 other states are no longer subject to the requirements of Section 5 of the Act because Section 4 is unconstitutional and outdated. The DOJ intervened in the Texas redistricting case just 2 months after the Supreme Court’s decision, and two years after the Texas suit began. The DOJ intervened after U.S. Attorney General Eric Holder promised to “keep fighting aggressively to prevent voter disenfranchisement . . . [and] to use all available authorities . . . to ask federal courts to require preclearance of new voting changes” in any state where it deemed necessary. The federal agency is fighting to have the Act apply to both redistricting map lawsuits and Voter ID lawsuits.
The Texas Legislature passed Texas House and Senate redistricting and U.S. Congressional maps (among others) for the 2012 elections in 2011. The Plaintiffs, which include minority groups and others, filed suit in June 2011 alleging racial discrimination in the drawing of the redistricting maps. The Texas Senate map is not a subject of the lawsuit because both sides came to an agreement before the primaries in 2012. The maps that were later used in the 2012 elections were interim maps drawn by the federal judges in San Antonio. These maps were later ratified by Texas Legislators in a special session.
A panel of federal judges in Washington, D.C. held in 2012 that lawmakers intentionally discriminated when drawing the Congressional maps and the Texas House maps. That decision was appealed by the State to the U.S. Supreme Court. The high court vacated the ruling following the Shelby County, Alabama v. Holder, Attorney General decision.
In September 2013, the Court allowed the Plaintiffs’ requests to amend their lawsuit to include claims against the 2013 redistricting plans as well as against the 2011 plans. The Texas Legislature passed new plans in 2013.
In May, the State filed a Motion to Dismiss arguing that new redistricting maps were drawn and the U.S. Supreme Court has held that Texas is no longer subject to preclearance requirements. The Court issued an order on June 17th that denied the State’s request to dismiss the 2011 plan claims as moot. The State argued in its motion that the claims against the 2011 plans are moot because legislative repeal moots any claims against the repealed law, and the Texas legislature repealed the 2011 plans and replaced them with plans incorporating the Court’s changes.
The Court granted the State’s motion to dismiss the political gerrymandering claims against the 2013 plan. The State had argued that the Court dismissed partisan-gerrymandering claims against the 2011 plans and should likewise dismiss the partisan-gerrymandering claims against the 2013 plans.
The issue in the lawsuit is now whether Texas legislators had the intent to racially discriminate when they drew the redistricting House maps in 2011. A finding of an intent to discriminate could be used to find that any new redistricting maps should be subject to mandatory federal preclearance. The proceedings this week are trials only on the issue of whether there was intentional discrimination in the drawing of the 2011 Texas House maps. The trial is the same trial conducted in September of 2011 but the Court never ruled on the issue. At that time the Court merely drew interim maps.
The issue of whether there was intentional discrimination in the drawing of the 2011 U.S. Congressional maps will go to trial on August 11th this year. There have been no trial dates set for the lawsuits on the 2013 Congressional maps and the 2013 Texas maps.
On Friday, U.S. Attorney General Eric Holder said that “I expect that we are going to be filing in cases that are already in existence in Wisconsin as well as in Ohio.” He also vowed that “I will use every power that I have, every ability that I have as Attorney General to defend that right to vote.” Holder was addressing last year’s U.S. Supreme Court ruling in Shelby County. Holder also criticized Voter ID laws saying that it makes voting harder for “Young people, African-Americans, Hispanics, older people, people who, for whatever reason, aren’t necessarily supportive of the Republican Party.”
Lauren Bean, the Deputy Communications Director for the Texas Attorney General’s Office told Breitbart Texas that “the Obama administration’s attempt to assert control over Texas elections is an affront to the recent U.S. Supreme Court decision and is hostile to the Constitution. The State is confident that the maps passed by the Texas Legislature in 2011 and 2013 comply with both the federal Voting Rights Act and the U.S. Constitution. However, it is important to point out that the Legislature enacted new maps in 2013 and the DOJ is seeking to subject the State to federal control on the basis of the 2011 maps that were never used for an election and no longer exist.”
The federal court judges told the litigants that a decision will not be made on the 2011 Texas House redistricting map until there have been trials on the 2011 Congressional, 2013 Congressional, and 2013 Texas House redistricting suits.
The Court also ruled that elections in 2014 will be unaffected by the lawsuit. In a September 2013 Order, the Court wrote that “a full, fair and final review of all issues before this Court cannot be completed prior to the upcoming deadlines for the 2014 elections. Thus, for reasons explained herein, the Court ORDERS that the 2013 enacted plans for the United States House of Representatives (Plan C235) and the Texas House of Representatives (Plan H358) be used as interim plans for the 2014 elections.”
The trial on whether there was intentional discrimination in drawing the Texas House redistricting maps is expected to take all week.
Lana Shadwick is a lawyer and contributing writer and can be followed on Twitter@LanaShadwick2.