Even though Texas lawmakers intentionally gerrymandered voters into congressional and state House districts based on race in 2011, they won’t have to pre-clear their maps for the next decade with the federal government, a three-judge panel ruled Wednesday.
The decision has significant implications for the enduring power of the 1965 Voting Rights Act. In 2013, the Supreme Court struck down a core part of the law that required places with a history of discrimination, like Texas, to clear all of their voting changes with the federal government. But the plaintiffs in the Texas case had urged the case to use a different provision in the law, section 3(c), to require Texas to clear maps with the government because the discrimination was so severe. Just one jurisdiction in the U.S. has been put back under pre-clearance requirements since 2013, and the Texas case was seen as a test of whether section 3(c) had teeth to protect against voting rights violations.
The maps that Texas lawmakers drew in 2011 never went into effect because a court found them discriminatory. The state imposed a temporary map for the 2012 election and then made it the permanent map. A federal court found that the new plan perpetuated the discrimination from the 2011 map, but the Supreme Court last year reversed that finding and said it was OK.
The Justice Department was initially in favor of pre-clearance requirements for Texas, but it reversed its position in January. The reversal brief was only signed by political appointees, a sign the career attorneys working on the case may have disagreed with it.
The three-judge panel wrote Wednesday that it was very clear Texas had discriminated in 2011, but that the Supreme Court’s 2018 decision blocked them from putting the state back under pre-clearance requirements. The panel said it reached its decision even though it believed Texas’ conduct was sufficient for being put under supervision.
“Although this Court may disagree about the lingering effects of discrimination from the 2011 plans, the clear import of the Supreme Court’s opinion is that nothing further remains to be remedied, and this Court is bound to follow that opinion,” U.S. District Judge Xavier Rodriguez wrote for the panel.
“To be clear, however, the Court has grave concerns about Texas’s past conduct,” Rodriguez continued. “During the 2011 legislative session, Texas engaged in traditional means of vote dilution such as cracking and packing in drawing districts, and also utilized newer methods of dilution and suppression such as using the ‘nudge factor’ and passing voter ID requirements.”
Texas Attorney General Ken Paxton (R) praised the court’s decision.
“This court ruling is a win for our Constitution and the right of Texans to govern themselves,” Paxton said in a statement. “The plaintiffs’ requests for bail-in were based on plans that were adopted by the Legislature in 2011, never used in any state election, and repealed more than six years ago. We are thankful that today’s decision finally puts an end to this baseless challenge.”
The panel’s decision means that Texas will be able to draw electoral maps without federal supervision for the first time since the early 1970s, according to Travis Crum, a lecturer at the University of Chicago Law School.
“Given Texas’s recent and pervasive history of racial discrimination in voting, that is a very worrisome development,” Crum wrote in an email. “Today’s decision is a huge loss for voting rights groups and is especially surprising given that Texas is a poster child for bail-in [or pre-clearance].”
“If not bail-in here where there were statewide violations of intentional discrimination (14th and 15th amendment violations), coupled with another state violation (voter ID case), then what type of case would it be justified?” said Gerry Hebert, a voting rights attorney at the Campaign Legal Center who worked on the case.
Texas took a similar approach when implementing its law requiring voters to show identification at the polls. After the voter ID provision was struck down as intentionally discriminatory, the state implemented a temporary fix for the 2016 election. Texas then took the interim solution and made it permanent.
A district court judge ruled the new law was still discriminatory, but the U.S. Court of Appeals for the 5th Circuit reversed that decision and said the new law was fine. Judge Edith Jones, who wrote the majority opinion for the 5th Circuit, said Texas should not be put under federal supervision over the voter ID claims. The panel on Wednesday also cited the 5th Circuit’s decision in the voter ID case to explain why it couldn’t put Texas under federal supervision.
“It’s very frustrating,” Hebert told HuffPost. “This is the eighth year of litigation this year. You prove intent in a number of cases, not just one case, and then it’s as if ‘No harm, no foul.’”
This story has been updated with additional information and comments from Paxton and Hebert.