How a decade of voting rights fights led to fewer redistricting safeguards for Texas voters of color

“How a decade of voting rights fights led to fewer redistricting safeguards for Texas voters of color” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Navigating the streets to the U.S. Supreme Court on a Sunday morning, veteran civil rights attorney Jose Garza was anxious.

It was the spring of 2018, and in two days the high court would consider whether Texas lawmakers had drawn political maps that purposefully undermined the voting strength of their state’s people of color.

Garza had made the walk several times before. Much of his career has been dedicated to dismantling Texas political structures that keep people of color out of power, taking down discriminatory gerrymanders and forcing change in local election systems. For the past seven years, he had represented the Mexican American Legislative Caucus and was among the assembly of lawyers who were taking on the state on behalf of voters of color, Democratic lawmakers and civil rights organizations.

It had been seven years of trying to convince federal judges that the legislative and congressional districts in Texas were crafted to diminish the political influence of expanding Hispanic and black populations — to intentionally give those voters less say in choosing who in Austin and Washington gets to write the laws that impact their lives.

While the complicated case relied on various maps and demographic analyses and a shared assumption that good faith could not easily be extended to those being asked to give up a fraction of their power, Garza believed his team could convince the court that this was just the latest chapter in the state’s long history of discriminating against voters of color to keep that power.

But as he approached the broad steps leading up to the tall, white marble columns that line the court’s imposing front facade — the words “equal justice under law” inscribed just over the entrance — Garza reflected on the defeats the court had dealt voters of color in recent years. Most prominent among them was the court’s 2013 decision to gut the Voting Rights Act, scrapping a decadeslong safeguard for voters of color that required states like Texas with a history of discrimination to obtain federal approval before changing their election laws.

So as the court prepared to take up yet another voting rights case, Garza worried that racial equality in voting was on a too perilous legal plane.

“Every time we’ve come to the Supreme Court, things have gotten worse for minority voting rights,” he said.

He was right to be worried. Just two months later, the Supreme Court would deal another blow, allowing all but one of the state’s political districts to remain in place through the end of the decade. By ruling against Garza and his colleagues in a case known as Abbott v. Perez, the court tossed aside accusations — and a lower court’s ruling — that lawmakers had adopted those districts in 2013 with discriminatory intent.

Texas Republicans hailed the ruling as a restoration of the rule of law in redistricting, allowing the Texas voters to remain in control of their state’s maps. But Garza and the other lawyers were dismayed. The high court’s ruling served to uphold maps that were devised using a legal strategy that a district court had described as “discriminatory at its heart.” But more significantly, it stood as the culmination of a chain of events that altered how political mapmaking in Texas will be scrutinized and overseen for years to come.

Since Congress passed the Voting Rights Act in 1965, Texas has been barred by law from discriminating against voters of color. Yet in every decade since then, federal judges have ruled at least once that the state violated federal protections for voters in redistricting.

Now, as Texas Republicans are facing the possibility of losing their political dominance, the state is gearing up for a new cycle of mapmaking. The House Redistricting Committee will hold the first of more than a dozen hearings Tuesday in advance of what’s expected to be a contentious legislative session in 2021, when new political boundaries will need to be drawn to account for the state’s booming population.

But because of voting rights advocates’ repeated court losses over the past decade, state lawmakers facing an incredibly pivotal and politically fraught moment will instead have much more freedom to set those lines — and the power that comes with them — without any federal government oversight. And once they’re enacted, the voters of color and civil rights groups that have fought the maps in the past may not have the same tools with which to challenge the discrimination that may tarnish them.

“It’s just extremely disappointing as far as they went to sort of kick us down and kick minority voting rights down,” Garza said after the Supreme Court ruling came down.

‘Mistakes of the past’

For those who weren’t Republican, there wasn’t much room for optimism at the turn of the decade.

Just before the 2010 election, the 150-seat Texas House stood at a near even split of 76 Republicans and 74 Democrats. Then everything shifted.

A Tea Party wave election that year ushered in a Republican supermajority after the GOP picked up two dozen seats in the state House.

It was a striking political foreword to the map-drawing state lawmakers were about to embark on to account for the 4.3 million new residents the state had welcomed since 2000. Nearly 90% of that population growth, which would give the state four new seats in the U.S. House, was attributed to Texans of color, particularly Hispanics, who tend to support Democrats. But with a Republican governor and a Republican-dominated House and Senate, the GOP — with a roster of almost exclusively white lawmakers — was in complete control of drawing the lines.

At legislative hearings in the spring of 2011, groups that advocate for communities of color implored state legislators to turn that growth into more adequate or, at least, fair representation and break the state’s long-standing streak of violating the voting rights of people of color.

“The lesson is that we should not repeat the mistakes of the past,” Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund, told lawmakers at the time.

But the districts state lawmakers and leaders signed off on that year were forged through political cartography that was later found to be questionable.

On the congressional side, for example, state lawmakers performed what one Democratic congressman described as “substantial surgery” on Texas’ congressional districts, clipping economic engines and incumbents’ district offices and homes from districts where Hispanic and black voters were in the majority.

In southwest Houston, Al Green lost the Texas Medical Center — the largest medical complex in the world — a university and the area where he had established his district office. In Charlie Gonzalez’s majority Hispanic district in San Antonio, lawmakers cut out the Alamo and a convention center named after his father; he also lost his district office. And in Eddie Bernice Johnson’s district covering the southern end of Dallas County, they removed the American Airlines Center — the home of the Dallas Mavericks — her district office and even her home.

The white Republicans did not face similar trims. In fact, some of their districts were redrawn at their requests to include specific country clubs and even the school an incumbent’s grandchildren attended. Republicans at the time — and throughout the decade — argued that it was politics, not race, that drove their decision-making.

But in one long-fought-over congressional district, a federal court would later find that lawmakers drew the district’s lines precinct by precinct in an effort to swap out politically active Hispanic voters with low-turnout Hispanic voters. Overall, the court would rule, lawmakers dismantled several “opportunity” districts where voters of color made up the majority of the electorate and could elect their preferred candidates. Despite significant growth in the Hispanic population, Hispanic voters didn’t see any meaningful gains in opportunities to flex their burgeoning political clout.

“The election happened and we thought, ‘Oh, we’re screwed,’” said Yannis Banks, who at the time headed up the Texas NAACP’s legislative team. “I don’t know that we thought it would be as extreme or as bad, especially congressionally speaking.”

What they did know was that federal law offered them a way to correct course.

Back then, Texas was still covered by the Voting Rights Act’s Section 5, also known as preclearance. That meant the state was required to submit every modification to its election laws and politics maps for approval from the federal government or a federal court before they went into effect. The section was designed to ensure the states didn’t trample on the rights of voters of color.

That safeguard had proven crucial to political redistricting in a state with a long and persistent history of suppressing Hispanic and black Texans. Since the enactment of the Voting Rights Act in 1965, Texas has not made it through a single decade without a federal court ruling it violated that federal law or the U.S. Constitution and ordering it to correct its legal mistakes.

“Whether the legislative process and the executive branch were controlled by Democrats or Republicans, it didn’t matter,” Garza, the civil rights lawyer, said a 2011 court hearing.

Under the preclearance regime, the U.S. Department of Justice lodged objections to Texas’ map-drawing at least eight times in less than three decades. In total, the DOJ objected to 207 voting changes made in Texas in that time period — more than in any other state subject to preclearance.

Soon after lawmakers approved the maps, another coalition of lawmakers of color, civil rights groups like the NAACP and average Texans came together to once again challenge district boundaries they viewed as discriminatory.

Their court fight ramped up in the federal courthouse in San Antonio just as the state opted to seek preclearance from a district court in Washington, D.C., instead of the more adversarial Department of Justice, which played a much more aggressive role in fighting voting discrimination during the Obama administration.

Thinking back to 2011, Allison Riggs, a civil rights lawyer who represented the NAACP in the litigation, said they knew Section 5 would give them time to fight the discrimination they saw in the maps. And they reasoned the federal government would join them in that fight and object to them “because they were just so bad.”

“We were confident on that end,” Riggs said. “Then we lost Shelby County [v. Holder].”

An interim fix made permanent

Voting rights cases are in many ways a race against the electoral clock. State lawmakers draw maps or pass voting laws. They’re inevitably challenged and caught up in court. A temporary fix is often needed ahead of the next election.

The point of that temporary fix is to get a remedy in place “that sort of lessens the discrimination” and stops a law from going into effect while the case is adjudicated, said Leah Aden, senior counsel for the NAACP Legal Defense and Educational Fund.

“In the election context, this is particularly important because once elections are held under discriminatory law, people get in power, and they are making policy decisions,” Aden said. “You can’t get back those elections. You can’t necessarily get back those policy decisions that are made in the interim.”

That race started almost immediately in 2011. Texas had asked a district court in Washington, D.C., to grant preclearance, opting to avoid going through the Obama-era Justice Department. But the court appeared unconvinced by the state’s early arguments that the maps wouldn’t hurt voters of color.

With the clock ticking toward the 2012 elections, it then fell on a San Antonio-based panel of federal judges to figure out temporary maps to use instead.

The panel’s first attempts were shot down after a challenge from state lawyers who argued the proposed maps strayed too far from those legislators had decided on in 2011. The Supreme Court ordered the panel to try again by starting with lawmakers’ 2011 maps but making the necessary corrections to protect voters of color.

Pressed for time as the state could face delayed elections because of the litigation, the judges eventually approved compromise maps that made some adjustments in pockets of the state where plaintiffs had made strong enough cases early in the litigation that the districts were discriminatory.

But the judges repeatedly warned that the resulting boundaries — some of which had been tagged as discriminatory by the plaintiffs but were left intact in the temporary maps — were not perfect and could still be revised as the court case moved forward.

Lawmakers, however, began working to make the maps permanent as soon as they could. When the Legislature returned to the Capitol in 2013, then-Texas Attorney General Greg Abbott urged it to enact the San Antonio court-approved temporary maps.

“These maps already have the approval from the federal judges overseeing this litigation,” Abbott wrote to Joe Straus, the speaker of the House, that spring. “Enacting the interim plans into law would confirm the legislature’s intent for a redistricting plan that fully comports with the law, and will insulate the State’s redistricting plans from further legal challenge.”

By then, lawmakers had been hit with a scathing ruling from the district court in Washington, D.C., which had refused to grant the state preclearance for the 2011 maps. That meant that Abbott was counseling lawmakers to ratify maps based on old boundaries that had been found to steal political strength from voters of color.

Then-Gov. Rick Perry, a Republican, quickly signed the legislation into law.

The impact of Shelby

While preclearance was looming over the state’s mapmaking, a case that would ultimately dismantle the policy was winding its way to the Supreme Court.

In Shelby County v. Holder, the Alabama jurisdiction challenged the way federal oversight of places with discriminatory track records had functioned for decades. The Voting Rights Act had included special enforcement provisions in areas of the country, like Texas, where racial discrimination had been more prevalent. It used a formula — based on the existence of a discriminatory practice, such as voting tests, that blocked ballot access, as well as low voter registration and turnout in 1964 — to determine whether a state would need preclearance approval from the federal government or the courts before enacting a change to voting.

In its Shelby ruling, the Supreme Court in 2013 gutted the VRA by deeming that formula unconstitutional.

Writing for the majority, Chief Justice John Roberts wrote that a formula that made sense decades ago amid blatant discrimination was now outdated. He noted that states like Texas still faced preclearance, even though the discriminatory tests and voting barriers used in the original formula had been banned for more than 40 years, and voter registration and turnout in those places had risen significantly.

“Nearly 50 years later, things have changed dramatically,” Roberts wrote.

Texas Republicans had echoed Roberts in their early efforts to preserve their political maps. In court in the fall of 2011, Deputy Attorney General David Schenck opened his defense of lawmakers’ map-drawing by pointing to the state’s growth.

“We are proud that people from all over the country and all over the world see something better in Texas that makes it worth calling home,” Schenck said. “But when I say that Texas has grown, I mean something larger and more important than the crass demographic numbers that race would suggest. I mean Texas has evolved into something that people living here in 1965, when the Voting Rights Act was passed, would scarcely recognize.”

The Shelby ruling had an immediate effect on Texas. With preclearance gone, the maps the Legislature approved in 2013 were allowed to go into effect without any more scrutiny to suss out any more discriminatory features. Those maps remained in place through the day the case again reached the Supreme Court in 2018.

Years after lawmakers’ last changes to the maps, the San Antonio panel of federal judges found that the congressional and state House maps adopted in 2013 still flunked the Constitution and violated the Voting Rights Act. The court invalidated two congressional districts and nine state House districts where the judges found intentional discrimination against Hispanic and black voters. It flagged areas of the state where the boundaries remained unchanged between the latest maps and the original ones.

And the court found lawmakers’ lack of deliberation in 2013 — when they were advised to ratify the court’s temporary maps nearly wholesale — meant the “discriminatory taint” from the 2011 maps had not been removed.

The state appealed to the Supreme Court, and the court’s conservative majority not only OK’d lawmakers’ 2013 adoption of the maps but found they hadn’t acted with discriminatory intent.

It was a blistering loss for the plaintiffs and their lawyers after seven long years of fighting the maps. But its most profound impact is likely to be felt in the years to come.

The ruling threw into question whether the old and long-established ways of fighting discriminatory voting laws and maps were still workable. In the past, voting rights lawyers had negotiated temporary remedies for those laws and maps. Those replacements were meant to prevent — or at least reduce — the discrimination voters of color would otherwise face during the years it could take to bring down the original measures.

Now, they’d have to ask themselves whether doing so would give lawmakers who run afoul of federal voting protections the opportunity to seek a sort of do-over if they took those temporary remedies and made them permanent without any legal repercussions.

To the state’s legal foes, the ruling had created an incentive for lawmakers to push the boundaries of redrawing maps to see what they could get away with — this time with no preemptive federal oversight.

A new kind of supervision

In the wake of those repeated defeats, the voters of color and civil rights groups still had one more hope.

When the Supreme Court nixed the preclearance regime in 2013, it left open the possibility that states could be forced back under federal oversight if a court found they had intentionally discriminated against voters of color more recently.

The panel of federal judges that oversaw the case had already ruled that Texas had done so, finding lawmakers intentionally used race to undermine Hispanic and black voters when they drew their original maps in 2011.

Over the years, outside legal observers had posited that Texas was at or near the top of the list of most likely contenders for new supervision.

So after their loss at the Supreme Court, the plaintiffs and their lawyers returned to the federal courthouse in San Antonio this spring in one last, high-stakes effort to protect voters of color.

The state cloaked its defense in a sort of no harm, no foul mentality — after all, it noted, the 2011 maps had never gone into effect. And if there had been any violations, a state attorney told the court, they weren’t enough for new supervision because they didn’t rise to the rampant discrimination that marked the era before the Voting Rights Act was passed.

But the plaintiffs argued that if the opening the Supreme Court left in Shelby meant anything, then it had to apply to Texas redistricting. Without any oversight, the attorneys said, nothing would stop Texas from resisting the need to recognize the political power of voters of color again.

Although the judges agreed that lawmakers’ unconstitutional actions in 2011 were egregious enough evidence to revive federal oversight of the state’s mapmaking, they ultimately ruled against doing so. The Supreme Court had already blessed lawmakers’ deeds a year before when it signed off on the state’s current districts. In one last loss for the plaintiffs, the San Antonio court therefore determined there was nothing left to be remedied.

The new electoral reality quickly sunk in — Texas lawmakers with a long history of continually discriminating against their own voters would be free to draw up maps without any supervision for the first time in nearly half a century.

“Texas for the past 20 years has shown that it has an interest in limiting and restricting the voting rights of its Latino citizens in particular, although not exclusively, as much as it possibly can,” said Justin Levitt, a voting rights expert at Loyola Law School who worked at the Department of Justice for a brief period while it fought Texas in the case. “It’s not hard to tell a story that Texas is going to try again in another two years.”

The next 10 years

If Democrats and voters of color in 2011 had in the courts what they lacked in political power in the Texas House, then 2021 may be a near inverse.

The days of preclearance are far behind them. And it’s likely the litigation strategy voters of color used to fight discrimination for decades will offer little recourse in federal courts that are becoming increasingly hostile to second-guessing the intentions of state lawmakers.

But Texas Democrats are just nine seats away from denying from Republicans full control over the next round of redistricting — and with it the next decade of Texas politics.

The Texas Democratic Party is turning the bruising losses in the courts into mobilizing messaging in its quest to flip the House and then push for fair maps that do justice to the political strength of voters of colors.

“There’s so much in that [last ruling] that shows we were right, and even then we don’t get what we want,” said Manny Garcia, the party’s executive director. “We have to get everything right. This is not easy. But the numbers show it’s possible.”

But if the status quo holds, Texas Republicans will practically have free range to redistribute power in the state at a politically perilous time for the party.

In 2011, Republicans worked to expand on the electoral gains they made in a massive wave election the year before. In 2021, they’ll instead be striving to hold onto power as the state’s demographics continue to shift against them and their margins of victory narrow even in pockets of the state previously considered ruby red Republican strongholds.

Hispanics are behind more than half of the state’s population gains since 2010. Texas gained almost nine Hispanic residents for every additional white resident last year alone. And the state is expected to reach a major demographic milestone as soon as 2022, when the total number of Hispanic Texans could surpass the white population.

In the Texas House, where committee work on redistricting begins Tuesday, some Republicans have so far presented a plan to undertake a transparent and diplomatic approach to what’s often a heated mapmaking process.

“What I want to do and intend for the House to do is to follow the law,” said state Rep. Phil King, a Weatherford Republican who leads the chamber’s redistricting committee.

But many of the same Republican lawmakers who voted for maps less than 10 years ago that were found to intentionally discriminate against their constituents will get to approve the lines that will be drawn after the 2020 election — this time with fewer safeguards in place for voters of color. The attorney general behind the strategy that kept much of their handiwork intact is now the governor.

And if history is any indicator, voters of color are very likely to once again seek protection — and relief — from discrimination at the hands of the people who are supposed to be representing them and looking out for them. It’s a tale Luis Vera of the League of United Latin American Citizens laid out in 2011 at the start of the redistricting court fight that just wrapped up.

“We have continuously heard in all of these years of redistricting the argument from whoever happens to be on the other side that it is all about politics; it is not about race,” Vera said standing at a lectern in a San Antonio courtroom. “The parties keep switching sides. The officeholders keep switching sides. The interest groups keep switching sides. Three people are always standing on the same side — LULAC, MALDEF and the NAACP. We don’t switch sides.

“So this argument that this is political gerrymandering and not about race, well, how come we are always on the same side? We are always having to fight whoever is in power. And that is the whole history. This court knows that. The Supreme Court knows that. And that has been the history of redistricting.”