In Redistricting Appeal, Texas Challenges Part of Voting Rights Act

Texas is asking the U.S. Supreme Court to reinstate its recently tossed out redistricting map, its attorney general announced on Friday (October 19), likely setting up a case with major implications for the role of minorities in elections nationwide.

In appealing a lower court’s ruling that its once-per-decade redrawing of political boundaries discriminated against minorities, the state is challenging the constitutionality of Section 5 of the Voting Rights Act, the 1965 law requiring states with a history of voter discrimination to get the federal government’s approval before changing election laws.

The provision applies to eight other states — Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Virginia — and select counties or townships in seven other states.

In challenges under Section 5, plaintiffs are not required to provide hard evidence — such as emails, letters or testimony among those carrying out redistricting — of a state’s intent to discriminate. The burden is on the state to prove there was no intent. Texas failed to do that, the U.S. District Court for the District of Columbia ruled in August. The state’s Congressional, House and Senate plans eroded the clout of the state’s soaring Latino population while removing the “economic guts” from black districts, the three-judge panel said.

Black and Hispanic members of Congress had testified that they were excluded completely from the redistricting process, while opinions from whites were sought and heeded.

Texas’ redistricting plans have been challenged in court in each of the past four decades, and the state has lost all of those battles, largely because of Section 5. Just two days after this year’s ruling, the same court struck down the state’s strict voter ID law under the same provision.

Now Texas is challenging Section 5, saying it intrudes upon state sovereignty and is unnecessary because minorities are protected under the Constitution as well as Section 2 of the Voting Rights Act.

Texas’ redistricting case “demonstrates the acute federalism costs when Section 5 is invoked to prevent a State from implementing changes to its electoral maps necessitated by population growth,” the state says in its appeal. “The requirements of Section 5, especially as interpreted by the district court, virtually mandate an obsession with race and guarantee unprecedented intrusions into state sovereignty.”

Michael Li, an expert on redistricting in Texas, wrote on his blog that it’s “almost a certainty” the Supreme Court will accept the case. At the earliest, a decision on the case wouldn’t come until late spring.

Texas isn’t the only party challenging Section 5. Shelby County, Alabama and citizens in Kinston, North Carolina have each asked the Supreme Court for a review. Meanwhile, the Alaska is challenging the provision in U.S. District Court.

Six states, including Texas, filed a brief in support of Shelby County.