HOUSTON ― A Texas city found to be in violation of the Voting Rights Act and the 14th Amendment last month might still be able to use the offending electoral system this coming May.
A three-judge panel of the U.S. Court of Appeals for the 5th Circuit heard arguments Wednesday over whether the city of Pasadena should be forced to revert to its old setup, last used in 2013, or whether it can use a newer system created by the Republican-led city council that turned two of the city’s eight districts into at-large seats.
U.S. Chief District Judge Lee Rosenthal ruled last month that the city intentionally diluted the Latino vote by adopting the new system. The decision marked the first time since the Supreme Court’s 2013 Shelby County v. Holder ruling that a court has ordered a jurisdiction to submit electoral changes to the Department of Justice for “preclearance” to ensure compliance with the Voting Rights Act.
But the city ― whose population of 150,000 is roughly 62 percent Hispanic ― appealed and asked the 5th Circuit, which leans conservative, to delay Rosenthal’s order, in a bid to preserve the system it created for the 2015 election.
The appeals court panel pounded attorneys for both sides on Wednesday, offering little indication of which way the judges might eventually rule.
U.S. Circuit Judge Gregg Costa interrupted C. Robert Heath, the lead attorney representing Pasadena, shortly after he started speaking. Costa pressed Heath to acknowledge that using the newer system would hurt the city’s Latino voters. “That’s a significant harm, isn’t it?” Costa said.
Heath appeared flustered at times, stumbling over his words or sighing audibly. But he insisted that Pasadena would eventually prevail because the new at-large districts don’t discriminate against Latino voters. In the only election held so far under the new system, Heath argued, four Hispanic people won council seats in 2015, giving them representation roughly in line with their numbers. Hispanics make up a little less than half of Pasadena’s eligible voters.
“The Voting Rights Act doesn’t guarantee success,” Heath told the court. “It guarantees opportunity.”
Nina Perales ― vice president of litigation with the Mexican American Legal Defense and Education Fund, which brought the case on behalf of Pasadena voters ― defended last month’s ruling, saying the at-large districts flatly undermine Hispanic candidates’ chance of success. One of the Hispanic candidates who lost in the 2015 election under the new system, Celestino Perez, carried more than 80 percent of the Latino vote in his district and likely would have won under the old system, MALDEF has argued.
U.S. Circuit Judge Jennifer Walker Elrod appeared skeptical of Perales’ claim, asking whether it would be possible to give the city time to tweak its electoral plan to address concerns about diluting the Latino vote, while the case moves through the courts.
Meanwhile, the campaign for the local elections, to be held in May, has already begun. Candidates have registered in the old districts, in an effort to comply with last month’s court order. Because Latino voter turnout is low in areas with histories of discrimination, candidates need as much time as possible to reach out to voters, Perales said. Changing the districts now would undermine their outreach efforts.
“It would dampen voter turnout,” Perales said. “Thousands of voters will be shifted into a new district and have to relearn the candidates and their positions.”
The city of Pasadena requested a decision by Friday.
Because the January ruling would put the city under DOJ’s supervision, the case is likely to be an early test for how the Trump administration will handle enforcement of Voting Rights Acts violations and litigation that challenges voting restrictions. More broadly, the case could give some indication of how much potency is left in the landmark civil rights law.
Pasadena Mayor Johnny Isbell faced a dwindling Republican majority on the city council when he launched a plebiscite to reform the local electoral system four years ago, just days after the Shelby decision. Isbell watched this week’s hearing in the first of two rows of benches for the audience, but declined to comment on the litigation.
With President Donald Trump taking control of the White House, there’s little reason to think the Justice Department’s oversight of Pasadena and other jurisdictions would be as exacting as it might have been under the Obama administration.
Sen. Jeff Sessions (R-Ala.), Trump’s nominee for attorney general, voted to renew the Voting Rights Act in 2006, but has called it “intrusive” and celebrated the 2013 Shelby ruling, which liberated his home state of Alabama and many other states and localities ― predominantly in the South ― from the preclearance requirement.
Cristian Farias contributed reporting.