The Supreme Court and the Texas Gerrymander

Missing in the coverage of the Supreme Court's January 20 decision on redistricting in Texas is one critical question: when the Court ruled in favor of the State of Texas and ordered a three-judge panel in San Antonio to redraw maps they had drawn in November, did nine justices vote to uphold a racial gerrymander that violates the 1965 Voting Rights Act?

The Court's opinion is an attempt to resolve two related disputes in two federal district courts. The State of Texas filed suit in D.C., trying to "preclear" its maps as required by Section 5 of the Voting Rights Act. The state is also in federal district court in San Antonio, defending itself against minority voters, state legislators, and Democratic members of Congress who claim that the maps drawn by the Legislature in 2011 dilute the minority vote and violate Section 2 of the Voting Rights Act. Sections 2 and 5 of the act protect interests of minority voters.

Among hundreds of documents produced in the San Antonio lawsuit are e-emails and memos that describe a calculated effort by Republican legislators to dilute or marginalize the minority vote.

The Republican Party doesn't govern in Texas. It rules. Republicans hold supermajorities in both houses of the Legislature, and the last Democrat to hold a statewide elected office in Texas was swept away by the tide that carried George W. Bush into his second term as governor in 1998.

Republicans do not, however, control demographics. Since the 2000 census, population in Texas has grown from 20,851,820 to 25,145,551. Eighty-nine percent of the new Texans are Hispanic or black -- two groups least inclined to vote for Republican candidates.

The spike in minority population numbers created a Hobson's choice for Republican legislators. If the allocation of U.S. House seats were to accurately reflect population growth, there would be three new minority (therefore likely Democratic) districts and one new Republican district. In a close election, three seats might deliver the U.S. House of Representatives to the Democrats.

So Republican legislators in Austin -- taking directions from San Antonio Congressman Lamar Smith -- disregarded demographics. They created three new U.S. House districts designed to elect Republicans, leaving one new district for Hispanics and blacks.

Yet the Supreme Court ordered the judges in San Antonio to redraw the maps the lower court created in November, and to show greater deference to the maps drawn by the Texas Legislature -- maps that were intended to diminish the impact of the minority vote.

This is not conjecture. The paper trail left behind by Republican legislators and their attorneys was enough to convince a three-judge panel in San Antonio -- although one judge wrote a partial dissent.

Most telling are documents that pertain to the drawing of 36 House districts, four of them new. Republican intentions are evident in one memo, on which San Antonio Republican Congressman Lamar Smith scrawled -- "Confidential. Let's discuss before you show anyone."

The "Redistricting Proposal" Smith attached to an e-mail describes a plan that:

Creates four new districts as allowed by the census results....
1. One new likely Republican district in South Texas
2. One new Voting Rights Act district in South Texas that leans Republican
3. One new Voting Rights Act district in South Texas that leans Republican
4. One New Voting Rights district in the Dallas-Ft Worth area
Results in 25 congressional districts that lean Republican and 11 that lean Democratic.

Smith circulated his memo in mid-April 2011. The Texas Legislature would not vote on U.S. House districts until a special session in mid-June.

Smith's memo was one of approximately 400 e-mails and other documents that San Antonio federal district Judge Orlando Garcia ordered turned over to the plaintiffs and posted on the Internet, over the objections of Texas Republicans in the U.S. House.

Most damaging to the state's defense is an e-mail The Washington Spectator obtained from another source, which describes in detail how Smith's plan would be implemented.

Eric Opiela is an attorney representing the Texas delegation in the U.S. House. Gerardo Interiano is an attorney who left Congressman Smith's office to work on redistricting for the Republican Speaker of the House in Texas.

In the e-mail quoted below, Opiela tells Interiano how to manipulate certified voting age population (CVAP); Hispanic CVAP; registered voters (RV); and turnout (TO) in voting districts (VTD). The plan: to create two "Hispanic" congressional districts in which Hispanics are unlikely to turn out to vote -- that is, districts that Republican candidates can win.

It would be really useful for someone to go in and calculate a ratio for every census block in the state of CVAP/Total Population, a ratio of Hispanic CVAP/Total Hispanic Population, a ratio of Spanish Surname RV/Hispanic CVAP, and a ratio of Spanish Surname RV/Total Hispanic Population (these last two have to be calculated with the voter file overlaid with census stats). It also would be good to calculate a Spanish Surname Turnout/Total Turnout ratio for the 2006-2010 General Elections for all VTDs. Already have the data for 2006-2008 in a spreadsheet, just need to gather it for every VTD for 2010. These metrics would be useful in identifying a "nudge factor" by which one can analyze which census blocks, when added to a particular district (especially 50+1 minority majority districts) help pull the district's Total Hispanic Pop and Hispanic CVAPs up to minority status, but leave the Spanish Surname RV and TO the lowest. This is especially valuable in shoring up Canseco and Farenthold.

Quico Canseco is a first-term Republican Hispanic who has little appeal among Hispanic voters. Blake Farenthold is a first-term Anglo Republican who narrowly won, and will lose the Hispanic vote in his Corpus Christi district.

Opiela was packing districts with Zombie Hispanics -- undocumented, unregistered, or unmotivated based on past elections -- who represent no threat to the two Republican incumbents.

Opiela's e-mail is dated November 19, 2010 -- two months before the Legislature convened.

It's no surprise that a party would use its majority status to defend its status as a majority. What is surprising is the extent to which Republicans went in Texas. And their disregard for the Voting Rights Act, enacted in 1965 to protect the voting rights of minorities.

Therein lies what appears to be the end game. In a brief that Texas Attorney General Gregg Abbott filed in the Texas Supreme Court Case, he challenged the constitutionality of Section 5 of the Voting Rights Act.

The Court avoided the issue, but Abbott's claim was more than Associate Justice Clarence Thomas, the only African American on the Court, could resist.

"In my view," Thomas wrote in a concurring opinion, "Texas' failure to timely obtain preclearance to its new plans is no obstacle to their implementation, because, as I have previously explained, Section 5 is unconstitutional."

The Texas redistricting fight the Supreme Court is trying to untangle might be a prelude. Many legal scholars believe that four justices -- Thomas, John Roberts, Antonin Scalia, and Samuel Alito -- are eager to overturn critical parts of the Voting Rights Act. The might have that opportunity soon. Two cases working their way through the appeals process -- one from Georgia and one from North Carolina -- are direct challenges to Section 5 of the VRA.

Writing in his Scotus Blog, veteran Supreme Court reporter Lyle Denniston describes the two lawsuits as an attempt to get "a speedy decision -- perhaps in time for the 2012 elections -- on the constitutionality of the federal law that many consider history's most important guarantee of minorities' voting rights."