Where Texas redistricting lawsuits stand after U.S. Supreme Court ruling in Alabama case

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Breaking from a recent pattern of weakening protections for voters of color, the U.S. Supreme Court last week left intact a key portion of the federal Voting Rights Act. The decision's importance in ongoing litigation over the political maps Texas drew in 2021 will largely be felt in what didn't happen.

In a 5-4 decision on a redistricting case out of Alabama, the court reaffirmed the constitutionality of a section of the federal law that prohibits voting practices that discriminate on the basis of race. The case against Texas lawmakers' 2021 redistricting work is built on that provision.

“I believe the opinion breathes new life to an incredibly important statute that's necessary to preserve our democracy,” said Chad Dunn, one of the lawyers challenging the state's mapmaking in court. “It's going to have impacts across the country, and one of those places is Texas.”

Here's what the court's ruling means for the legal challenges to Texas redistricting, and where the waylaid case stands.

What is the Texas redistricting case about?

The Texas redistricting case is actually a set of consolidated lawsuits brought by individual Texans, organizations that represent Texans of color, the Texas NAACP and the U.S. Department of Justice, among others, who claim the Texas Legislature discriminated against voters of color in its 2021 map drawing.

The updated maps were meant to reflect the explosive growth captured in the 2020 census, almost all of it driven by Texans of color. But the Republican-drawn maps largely serve to bolster the party's dominance, giving white voters even greater control of political districts throughout the state.

The state faces an assortment of legal challenges to its congressional and statehouse maps, including allegations of intentional discrimination, vote dilution and racial gerrymandering. For example:

In the Rio Grande Valley, the plaintiffs allege map-drawers reconfigured a congressional district to offer Republicans a more competitive edge by manipulating precincts in and out of the district based on race. They also argue lawmakers discriminated against Latino voters by “making improper and excessive use of race” in each of its maps.

Across North Texas, the challengers point to several instances in which communities of color were siphoned off from diverse districts and submerged into more rural districts dominated by white voters in which they will have less of a political voice.

In some areas where voters of color were gaining political ground, Republican map-drawers elaborately manipulated lines to create district boundaries that could diminish their influence.

Republican lawmakers and attorneys representing the state in court have denied that their work ran afoul of the Voting Rights Act or constitutional protections against discrimination.

Does the ruling on Alabama's redistricting affect Texas?

The high court ruled last week that Alabama had diluted the voting strength of Black voters in redrawing its congressional map and required that it draw the districts again, giving Black voters a real chance of securing a second district in which they have the opportunity to elect their representatives.

More significantly outside of Alabama, the majority of the court spared what's known as Section 2 of the Voting Rights Act. Court observers and voting rights advocates feared the case would go the other way, but the court opted to preserve the status quo on voting rights litigation a decade after its ruling in another case out of Alabama, known as Shelby County v. Holder, gutted a core principle of the landmark civil rights law.

“Where the court 10 years ago accepted the invitation to weaken the Voting Rights Act with Shelby, [this time] the majority of the court rejected Alabama's argument that would have weakened the Voting Rights Act's protection under Section 2,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.

While the pathway to challenging voting laws in federal court has been narrowed as the law has been weakened, voters have found a way forward through Section 2, which prohibits any voting practice or procedure that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Violations of the law occur when, “based on the totality of circumstances,” groups of voters of color have less opportunity to participate in the political process or to elect representatives of their choice.

Texas has repeatedly run afoul of protections for voters of color in the past.

In a majority opinion authored by Chief Justice John Roberts, the court leaned on precedent to reject Alabama's argument that Section 2 is unconstitutional because it places too much emphasis on race. Alabama's various arguments, including a pitch for race-neutral tests, could have radically changed how Section 2 claims are litigated.

Lawmakers are generally not allowed to draw districts predominantly on the basis of race. But the Voting Rights Act can require them to consider race when sketching boundaries under certain circumstances, namely to protect or create “opportunity districts” in which voters of color make up a majority of the electorate and can usually elect their preferred candidate.

“[This] was the court taking a very, very standard approach to a redistricting challenge under the Voting Rights Act,” said Perales, who is representing Latino plaintiffs in the Texas redistricting case after successfully challenging the state's maps last cycle.

The Texas redistricting case, which is further behind than challenges to other states' maps, is chock full of Section 2 claims.

Some plaintiffs' lawyers said the Supreme Court's ruling would not change much of their approach to those claims, while others said the decision clarified the complex legal framework needed to prove a violation of Section 2. But they agreed that the court's ruling dispatched some of the arguments states like Texas might look to in defending against their challenges.

“One of the things that the majority did is it really refused to rewrite Section 2 along the lines of various arguments that defendants are raising across the country,” said Yurij Rudensky, who serves as a redistricting counsel for the Brennan Center for Justice and represents a group of plaintiffs in the Texas case.

Like Alabama, Texas had argued in court that Section 2 does not apply to redistricting at all — an assertion the Supreme Court's majority disagreed with explicitly in its decision.

“It acknowledged the fact that in the instance of racial discrimination, which is what Section 2 operates to identify, that any remedy will have some consideration of race,” Rudensky said. “In terms of some of these more extreme attacks on Section 2 — whether to completely reformulate the law or strike it down entirely — the five-justice majority squarely rejected many of those really extreme arguments.”

The Texas attorney general's office, which is defending the state's maps in court, did not respond to a request for comment about the Supreme Court's ruling.

Where does the Texas redistricting case stand?

The Texas redistricting case remains delayed, with the state working to keep secret many of the private communications lawmakers engaged in while drawing new maps.

The federal three-judge panel considering the case canceled a September 2022 trial a month before it was set to begin after disputes over discovery left both the state and the various plaintiff groups questioning whether they'd have enough time to prepare to make their cases in a federal courtroom in El Paso.

At issue are subpoenas and motions to compel certain documents from legislators and third parties. The state and the plaintiffs are also quarreling over lawmakers' assertions during depositions of what's known as legislative privilege, which allows legislators to keep secret their communications on policy along with their “thoughts and mental impressions.”

Those disputes have been further complicated — and delayed — by legal wrangling over discovery in a separate lawsuit challenging the sweeping voting law, known as Senate Bill 1, that lawmakers passed in 2021. In that case, state legislators withheld certain materials, also citing legislative privilege, and then turned to the 5th U.S. Circuit Court of Appeals when a district judge largely rejected their privilege claims and ordered them to hand over about 220 documents.

The 5th Circuit's ruling, allowing lawmakers to keep those documents hidden, didn't come until last month.

The plaintiffs in the redistricting case now plan to file briefs to determine how much the 5th Circuit's ruling should affect their discovery. There are still more than 10 separate pending motions related to discovery in the case.

Why is that discovery important?

Redistricting cases are complex, with plaintiffs carrying the burden of proving wrongdoing by the state. The exact content of the communications the state is trying to keep hidden is unknown. But the material could be helpful to the challengers, particularly when it comes to proving that the maps were drawn with discriminatory intent — a separate legal claim they've raised.

The release of disputed documents, the plaintiffs argued in earlier court filings, could reveal new facts requiring additional depositions of state lawmakers who relied on asserting legislative privilege to avoid divulging information on how the maps were drafted.

In the litigation over the 2011 round of redistricting, a court ordered the release of map-drawers' emails, which revealed conversations about a “nudge factor” and “Optimal Hispanic Republican Voting Strength” — a measure by which to make districts appear as if they had large Hispanic populations while still leaning Republican.

Those emails, along with testimony from staffers, proved crucial to a three-judge panel's findings that lawmakers had purposefully discriminated against voters of color in drawing up new maps for Congress following the 2010 census.

Explaining their actions this time around, lawmakers mostly offered that they followed traditional redistricting principles in incorporating another decade of growth into the maps.

The Senate's chief map-drawer, Joan Huffman, a Republican from Houston, also said throughout the redistricting process that the maps were drawn “race blind” but were presented to legal counsel who cleared them as compliant with federal law meant to protect voters of color from discrimination. Huffman repeatedly declined to disclose how they reached that conclusion, though.

“Legislators can claim they drew plans ‘race blind' but that claim rings hollow when the legislators will not disclose their documents and their communications that surround the map-drawing,” Perales said.

In an early deposition in the case, Huffman refused to answer questions about her considerations while redrawing political districts.

She claimed legislative privilege.

When will the case be decided?

It's impossible to know at this point. In fact, the litigation over the last round of redistricting is ongoing with the parties still hashing it out over attorney's fees in the long-winding case.

In the current litigation, it's unclear how long it will take for the appeals and pending motions over discovery to be dealt with. The three-judge panel has yet to reschedule a trial, which would very likely stretch over several weeks. The court's decision wouldn't come for several months after that. And that decision would likely be appealed to the U.S. Supreme Court.

By then, Texas could very well be deep into the second election cycle under challenged maps that could later be found discriminatory.

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This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/06/13/texas-redistricting-lawsuits/.

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