Monday, December 12, 2011

Perez v. Perry: Gerrymandering Latinos in the Lone Star State

By Leland Ware

On December 9, 2011, the U.S. Supreme Court granted an emergency stay that blocks the use of a redistricting map drawn by a panel of federal judges in Texas. The 2010 Census showed that over the last decade, Texas' population grew by 4.3 million. As a result, the state was given four new seats in the U.S. House of Representatives. The state's Republican dominated legislature redrew its congressional districts in ways that made it likely that Republicans would win all of the new seats.

Texas is a "covered" jurisdiction. Under the Section 5 of the Voting Rights Act, it cannot implement its redistricting plan until it is approved by the U.S. Department of Justice or by a federal court in Washington D.C. The Obama administration objected to Texas' redistricting plan, as did several Latino civil rights groups. Instead of following the usual route of seeking approval by the Department of Justice, Texas filed a suit seeking preclearance in the U.S. District Court for the District of Columbia (a choice that the Voting Rights Act allows). The State later moved for summary judgment on the preclearance question. The federal court in Washington denied the summary judgment motion which means that the case will proceed to a trial.

Six consolidated cases filed by individuals and civil rights organizations are pending in a federal court in San Antonio. The plaintiffs in those cases claim that Texas' redistricting plans violate the U.S. Constitution and the Voting Rights Act. They contend that the legislature drew the maps to dilute the influence of the state’s rapidly growing Latino population, which accounted for more than half of Texas' population growth.

The federal court presiding over the cases challenging Texas' redistricting plans issued an order on September 29, 2011, enjoining implementation of the State's plans pending Section 5 preclearance. Texas primaries are scheduled for March 2012. After Texas' summary judgment motion was denied by the court in Washington, the federal court in Texas decided to draw an "interim" redistricting map that would allow election planning for 2012 to proceed.

Federal law provides that challenges to redistricting cases are to be heard initially by three-judge federal district courts with direct appeals to the Supreme Court, by-passing the usual route of proceeding through federal appellate courts. Texas sought review of the "interim map" decision in the U.S. Supreme Court, which issued an order staying the decision issued by the federal court in Texas. The Supreme Court said it would hear special arguments on January 9, 2012, to decide whether Texas can hold elections using redistricting plans that have not been approved under the Voting Rights Act.

It appears that the Supreme Court will only rule on the validity of the Texas court's decision to draw its own redistricting maps. None of the lower courts have ruled on the underlying question of whether the districts established by the Texas legislature violate federal law or the Constitution. But that won't prevent Justices such as Chief Justice John Roberts and Associate Justice Clarence Thomas from reiterating their claims that Section 5 of the Voting Rights Act is unconstitutional. Despite the mountain of evidence of continuing discrimination complied in Congressional hearings when the Voting Rights Act was reauthorized in 2006, they contend that the patterns of discrimination that justified Section 5 in 1965 have been eliminated.

This case is one of the many challenges to the Voting Rights Act by those who are unwilling to accept the realities of rapidly changing demographics and continuing efforts to discriminate against minority voters.

About the Author

Leland Ware, a member of the Board of the Southern Regional Council, is Louis B. Redding Chair and Professor for the Study of Law and Public Policy at the University of Delaware.He is the author of numerous publications, and he served as co-editor of the recently-published volume, Choosing Equality: Essays and Narratives on the Desegregation Experience.

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