By Laurel Brubaker Calkins
Aug. 11 (Bloomberg) -- Texas and voting-rights activists supported by the U.S. government will resume a three-year battle over claims that Republican lawmakers intentionally drew Congressional districts to curb the political power of the state’s growing Latino population.
Texas seeks to convince a three-judge federal panel today in San Antonio that its voter maps were designed to improve re-election chances for Republican incumbents and weaken Democrats, not dilute minority voting strength.
“Partisan gerrymandering” is legal, the state said. The federal government and civil-rights activists contend the state is making a distinction without a difference, because minorities tend to vote for Democrats in Texas.
“Partisanship is not a defense to intentional vote dilution,” Bryan Sells, a lawyer with the Justice Department’s Civil Rights Division, told the San Antonio judges last month. “If a legislature intentionally dilutes minority voting strength because its members are under the impression, mistaken or otherwise, that doing so will help their political party, it is not legally different,” from diluting minority voting strength because they “don’t like black or brown people,” Sells said, according to a transcript.
The parties will be in a San Antonio courtroom this week for phase two of a multi-stage trial. Last month it focused on statehouse Legislature maps. The attention this week shifts to congressional districts.
The maps being debated were revised by the court for use in the 2012 presidential election and remain largely the ones that will be used in this November’s races for the U.S. House.
“Everything in this map is consistent with a political purpose,” Patrick Sweeten, Texas’s lead lawyer, told the court last month. “Nothing on this map is explainable only on the basis of race.”
Texas, the second-largest U.S. state, gained four Congressional seats after the 2010 U.S. census counted 4.3 million new residents. While almost 90 percent of these new Texans are Hispanic and black, lawmakers under the direction of Republican Governor Rick Perry mapped out fewer districts likely to elect minority candidates, according to voting-rights activists.
Texas’s congressional delegation currently includes 24 Republicans and 12 Democrats. Creating election districts that favor minorities might cause Texas to go Democratic in coming elections, demographers say. Five of the state’s six largest cities twice voted for President Barack Obama.
The case is being closely watched by national voting-rights advocates and other states with histories of voter discrimination, because the Justice Department has made this a test case as it tries to revitalize the Voting Rights Act.
That voter protection law, used to guarantee minority access to the polls for more than 40 years, was partly overturned by the Supreme Court in June 2013 in a case involving Shelby County, Alabama.
The high court decided states and cities shouldn’t be subjected to continuing federal oversight of all election-related changes on the basis of past discrimination against minority voters. The justices scrapped the provision that had required jurisdictions with discriminatory histories to get pre-approval from the Justice Department or a federal judge before making changes.
In the San Antonio case, if the Justice Department can prove Texas is still actively discriminating against minority voters, as it allegedly did with biased election maps, that might trigger a largely untested provision in the Voting Rights Act that wasn’t affected by the Shelby County ruling.
If the U.S. wins, its lawyers say, they’ll ask the judges to use that provision to force Texas back under federal electoral review -– a process known as pre-clearance -- for as long as 10 years.
Federal attorneys must prove Texas legislators intentionally created election maps to make it harder for minorities to vote their candidates into office. State mapmakers used “race as a proxy” to draw partisan boundaries that split precincts and carved minority communities into bizarre shapes, voting activists claimed in court papers.
“There is simply no way this is some kind of accident,” Jose Garcia, lead attorney for one of the groups suing over the maps, said in a filing. “It was a difficult task for those who drew the lines to confine a rapidly growing minority population into as few districts as possible.”
The San Antonio judges have not yet scheduled additional trial phases on Texas’s remaining maps. They have said they will review the evidence from all phases before determining whether Texas must once again become subject to pre-clearance and whether the maps will go back to the statehouse so legislators can try again.
The case is Perez v. Perry, 5:11-cv-00360, U.S. District Court, Western District of Texas (San Antonio).