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DOJ Accuses Texas of Discriminatory Gerrymandering

By Laura Temme, Esq. on December 11, 2021 5:31 PM

The Department of Justice filed suit in Texas this week, saying the state's new voting district maps discriminate against Latino and Black voters. The 2020 census revealed that these communities have fueled a boom in the state's population, but the DOJ alleges that redistricting plans ignored that fact in "an extraordinarily rapid and opaque legislative process."

Like many gerrymandering cases, the complaint references bizarrely-shaped voting districts and the trimming of minority neighborhoods from districts where a legislative seat is up for grabs. One Dallas-area district is described as "seahorse"-shaped. The complaint also alleges that Texas "intentionally reconfigured" the highly-competitive District 23 (near El Paso and San Antonio) in its new map "to eliminate a Latino electoral opportunity," which would result in a 9.3% reduction in Latino voting-age residents.

Read the complaint and thousands of other cases with a free trial of Westlaw Edge.

Here We Go Again

If all this sounds familiar, we wouldn't be surprised. The redistricting process in Texas has faced scrutiny in basically every round since the Voting Rights Act took effect in 1965. Section 5 of the Act contained a "preclearance" requirement imposed on states with a history of racial discrimination (like Texas), requiring these states to obtain the DOJ's approval on redistricting plans. But that all changed with the ​Supreme Court's 2013 decision in Shelby County v. Holder. The Court held in a 5-4 opinion that Section 5's requirement was unconstitutional because it violated states' power to regulate elections.

After Holder, the Supreme Court was reluctant to hear political gerrymandering claims. Then, the Court bowed out of such conflicts altogether in its 2019 decision in Rucho v. Common Causeconcluding that claims of partisan gerrymandering presented political questions outside the jurisdiction of federal courts.

However, the issue of racial discrimination in voting—which SCOTUS has called "an insidious and pervasive evil"—is a different story. Federal law prohibits drawing voting district maps in a way that intentionally dilutes the voting power of minority communities, and Congress may use "any rational means" to combat racial discrimination in voting.

DOJ Argues New Districts Intentionally Discriminate

The DOJ's complaint alleges that the Republican-controlled legislature drew several districts in the new map with the intent of discriminating against minority voters and especially Latino voters.

"Although the Texas Congressional delegation expanded from 36 to 38 seats, Texas designed the two new seats to have Anglo voting majorities," the complaint argues. And by contriving many seemingly nonsensical line-drawings, "[i]t surgically excised minority communities from the core of the Dallas-Fort Worth Metroplex (DFW) by attaching them to heavily Anglo rural counties, some more than a hundred miles away."

The federal government argues that these practices violate 52 USC § 10301, better known as Section 2 of the Voting Rights Act. This section provides that no voting qualification, prerequisite, "standard, practice, or procedure" can be imposed in a manner that denies or dilutes a person's right to vote based on race.

However, the DOJ may have a challenge on its hands since, especially in recent years, Latino voters do not tend to vote as a bloc. Although many Latino voters in Texas still vote Democrat, there has been a noticeable shift towards more conservative candidates in recent years. Given the Supreme Court's decision in ​Rucho ​to punt on political gerrymandering, the Republicans who drew the new maps will likely argue that the DOJ is just being partisan. So, the DOJ may have to find another way to show that the communities affected by the new district maps have had their votes diluted based on race.

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