Gerrymandering Ruling Already Being Felt in Texas
By Jamie Lovegrove
In striking down North Carolina's congressional district map, the Supreme Court sent Texas a firm warning Monday about how the state's case may fare if it reaches that stage.
Hours after the ruling, the federal district court in San Antonio currently overseeing the Texas case issued an order to the relevant parties asking them to submit briefs detailing how the North Carolina ruling will affect their claims, with a deadline of June 6.
Judge Xavier Rodriguez, on behalf of the panel, also directed Texas to consider whether it would like to "voluntarily undertake redistricting in a special session" of the legislature in light of the North Carolina ruling, giving the state until Friday to decide.
Rep. Rafael Anchia, the chairman of the Mexican American Legislative Caucus, which is a plaintiff in the case, said he interpreted the district court's new order as a message to the state.
"The way I read it is that the court is warning the state of Texas to fix these intentionally discriminatory maps or it will in a way the state might not like," said Anchia, D-Dallas.
Texas House Speaker Joe Straus declined to comment on the court's request. Lt. Gov. Dan Patrick did not immediately respond to a request for comment.
Latest Supreme Court rejection
The 5-3 North Carolina ruling affirmed a previous district court decision, which found that Republican state legislators there had "packed" black voters into two Democratic-held districts to dilute the impact of minority votes in other congressional seats.
Written by Justice Elena Kagan, the ruling is the latest in a series of rejections from the Supreme Court in recent years toward redistricting efforts that include racial considerations. The court demanded the review of Virginia state legislature districts in March and also ruled against Alabama's state legislature districts in 2015.
Even Justice Clarence Thomas, a conservative skeptic of discrimination complaints in the past, sided with the majority in the North Carolina case.
Kagan wrote that the court offers "significant deference" to the district court's ruling, leaving Texas with the tall order of proving that the lower courts made a "clear error" in the earlier judgments.
Perhaps most significantly, Kagan detailed the court's opinion in a footnote that using a political defense does not necessarily solve the racial issues. Some Republican-controlled states have argued that, rather than discriminating against minorities, they were merely intending to discriminate against Democrats.
That reliance on partisan gerrymandering as a legal excuse will not hold, Kagan wrote.
Rick Hasen, an election law expert at the University of California Irvine, summed up his reaction to the distinction: "Holy cow this is a big deal."
"This will lead to many more successful racial gerrymandering cases in the American South and elsewhere, and allow these cases to substitute for (so far unsuccessful) partisan gerrymandering claims involving some of these districts," Hasen wrote on his blog.
Justice Samuel Alito penned a dissent in the case, joined by Chief Justice John Roberts and Justice Anthony Kennedy.
"Partisan gerrymandering is always unsavory, but that is not the issue here," Alito wrote. "The issue is whether District 12 was drawn predominantly because of race. The record shows that it was not."
But it is the majority's opinion that will hold legal precedence moving forward.
A three-judge panel in federal district court in San Antonio ruled in March that Texas' 2011 congressional maps were racially gerrymandered to dilute minority voters. The judges did not detail next steps, likely reserving any potential remedies for when they hear a follow-up case on the 2013 maps in July.
The court specifically took issue with the districts held by Republican Reps. Will Hurd of San Antonio, Blake Farenthold of Corpus Christi and Michael Burgess of Lewisville, as well as Democratic Rep. Lloyd Doggett of Austin.
But the forthcoming July hearing on the 2013 map, which was drawn as a temporary fix as the 2011 map faced challenges, is where major changes could be either ordered or avoided.
The San Antonio judges said in their order announcing the trial on the 2013 map that it was taking into consideration the time crunch at hand, given the upcoming 2018 elections, meaning they may seek to rule quickly if they hope to fix the maps by that time.
Some of the boundaries that the court took issue with in the 2011 maps are identical to those in the 2013 version.
A spokeswoman for Texas Attorney General Ken Paxton did not immediately respond to a request for comment. But Paxton has previously expressed confidence in the state's 2013 maps after the district court struck down the 2011 effort.
"The adoption of those maps in 2013 mooted any issue with the 2011 maps. There are no lines to redraw," Paxton said in a written statement at the time. "Accordingly, we are confident we will prevail in this case."
Michael Li, a redistricting expert and senior counsel at New York University's Brennan Center for Justice, said the North Carolina ruling will be an "important decision" for the other districting efforts winding through the legal system, including those in Texas.
"It makes clear that this isn't about any sort of talismanic test or anything like that, but that you actually have to delve into the facts and circumstances about how maps are drawn," Li said. "So even a district that looks pretty and has nice lines, and everything like that, can still be problematic. And it's really up to the trial court to delve into that."
Brewing Supreme Court battle
Democrats in Texas celebrated the ruling as a promising indication of how their arguments will fare moving forward.
"I am happy that North Carolina voters secured another victory against the national Republican crusade to undermine the voting power of African Americans and Hispanics in local, state, and federal elections," said Rep. Marc Veasey, D-Fort Worth, who has been on the front lines of another legal case against Texas' voter ID law.
The request from the district court in San Antonio for new filings in the wake of the North Carolina decision confirmed the potential impact of the ruling. Matt Angle, the director of the Lone Star Project, a liberal advocacy group, said the court "is all but screaming in the ears of Texas Republican leaders to pull back from their culture of racial discrimination" by redrawing the map.
"Don't count on Greg Abbott, Dan Patrick or other Texas Republican leaders to listen or care," Angle said in a written statement. "Texas Republicans have adopted discrimination and vote suppression as essential tools to hold power."
Rep. Eric Johnson, D-Dallas, sent two letters earlier this year to Rep. Cindy Burkett, R-Sunnyvale, asking her to hold a hearing on the matter as chairwoman of the House Redistricting Committee. But the committee has not met at all this session.
Though the North Carolina decision may be a setback for Texas' chances, it will not necessarily be determinative of the outcome. As Kagan reiterated, the specific details of the districts matter greatly. And newly confirmed Justice Neil Gorsuch will be able to hear the Texas case, whereas the North Carolina arguments occurred before he took his seat on the court.
While Li said he was reticent to predict Paxton's decision-making, he expects the North Carolina case will factor into how he handles Texas' efforts moving forward.
"It should be a warning to states about how the court is going to look at these cases, but that doesn't mean that Texas won't appeal," Li said. "It is fact-specific, and there's a lot politically riding on these decisions, and sometimes taking your chance at the Supreme Court can be important."
But if Texas does not have more success in district court defending the 2013 map than it did in defending the 2011 map, the North Carolina decision suggests that the state is not likely to find a receptive audience in appealing to the nation's highest court.
Staff writer James Barragán in Austin contributed to this report.
(c)2017 The Dallas Morning News