Texas Tested A Strategy For Discriminating Against Voters. It Worked.

“Today’s decision essentially says, ‘Go ahead and discriminate.’”

The U.S. Supreme Court on Monday ruled 5-4 to uphold Texas electoral districts in a significant decision that condoned a legal strategy Texas Republicans used to get away with discriminatory districts for nearly a decade.

Much of Texas’ population growth ahead of the 2010 census was because of Latino growth, and the case the court decided Monday, Abbott v. Perez, dealt with allegations that Republican lawmakers drew electoral maps that discriminated against those voters. A federal court in Texas imposed maps for the 2012 elections after the ones the state initially drew in 2011 were blocked for being racially discriminatory. A year later, Texas took the court-drawn maps and largely adopted them as the state’s permanent plan. But the challengers in the case said that wasn’t an acceptable long-term fix, since the court’s maps were meant to be an interim remedy and still contained some of the discriminatory problems from 2011. Last year, the federal court in Texas found the 2013 districts continued the discrimination in the 2011 plan.

The lower court found that Texas lawmakers didn’t make the temporary plan permanent in order to get rid of discrimination, they did so as part of a “litigation strategy.”

On Monday, Justice Samuel Alito, writing for a five-justice majority that included Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch, said what Texas did in 2013 was just fine. Alito wrote that Texas didn’t have to prove that it had gotten rid of any discriminatory intent when it adopted the 2013 maps and that courts should assume legislatures acted in “good faith” when trying to assess claims of discriminatory intent. The court on Monday struck down just one state house district as unlawful.

Justin Levitt, a professor at Loyola Law School who worked on the case as a deputy assistant attorney general in the Justice Department during the Obama administration, said the ruling showed how states could discriminate and then use the courts to their advantage.

“Today’s decision essentially says, ‘Go ahead and discriminate,’” Levitt said in an interview. “If you get caught, worst thing that happens, you’ll have to slap a Band-Aid over it, worst-case scenario. Which is a serious problem. Texas was accused of doing the most serious thing there is in our legal system ― intentionally abusing state power to take action against people because of their race. The court essentially said if you put a happy face on it, it’s fine.”

Levitt noted that the only remaining effective deterrent to state discrimination against voters was a provision of the Voting Rights Act that allows states to be put under federal government supervision if they intentionally discriminate against voters. But Richard Hasen, an election law expert at the University of California, Irvine, wrote in Slate that Alito’s “good faith” deference to lawmakers would make it almost impossible for a state to prove intentional discrimination.

The legality of Texas’ electoral maps have been tied up in court since 2011, but politicians have been getting elected under them since 2012. Anthony Gutierrez, the executive director of the Texas chapter of Common Cause, said that means the minority population responsible for much of the population growth in Texas hasn’t had a chance to cast a meaningful vote.

“There is massive population growth in Texas, driven predominantly by minorities, that’s not translating into voting power because of these maps that are so heavily gerrymandered,” he said in an interview.

In a lengthy dissent, Justice Sonia Sotomayor highlighted the effect of the districts on minority voters.

“After years of litigation and undeniable proof of intentional discrimination, minority voters in Texas — despite constituting a majority of the population within the State — will continue to be underrepresented in the political process,” she wrote in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. “Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will.”

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