On August 28, 2012, a three-judge federal court in the District of Columbia held that Texas' 2010 redistricting plan violated the Voting Rights Act (VRA). The court found in Texas v. United States, that the redistricting plan was "retrogressive" because it diminished the ability of minority voters to elect candidates of their choice. The court also ruled that the plan had been enacted with an intent to discriminate against black and Hispanic Voters.
Under Section 5 of the VRA changes in voting procedures in a "covered" jurisdiction cannot be made without preclearance by the federal court in the District of Columbia or the United States Attorney General. In the 1950s and '60s the federal government’s efforts to eliminate discriminatory election practices with court cases were frequently thwarted. When one discriminatory practice was proven, a new one would be substituted requiring another round of lengthy and time consuming litigation. To put an end this cycle of chicanery, the VRA included special preclearance provisions targeted at states where the record of discriminatory tactics was the greatest.
Texas is one of six southern states covered along with a number of counties in other states. In 2006 amendments to the VRA were enacted which extended Section 5 for 25 more years. The amendments were based on evidence compiled in congressional hearings showing that racially discriminatory practices continued at very high levels.
Texas' redistricting was prompted by the 2010 census. The state's population grew by 4.3 million between 2000 and 2010. Almost 90 percent of that growth was attributable to minority residents. Latinos accounted for 65 percent of the increase, blacks 13.4 percent and Asian-Americans 10.1 percent. The growth qualified Texas for four new Congressional seats and required the state to create new voting districts.
Texas enacted a redistricting plan and in 2011, the state filed a civil action in the District of Columbia seeking a declaration that the plan did not violate the VRA. "Retrogression" occurs when minority voting strength is reduced by a redistricting plan. Texas' Republican-controlled legislature drew districts in a manner that reduced the number represented by blacks and Latinos.
In a detailed, 75-page opinion, the court found retrogression in Texas' congressional plan, the state house plan and the state senate plan. Although minorities accounted for 90 percent of Texas' population growth, black and Latino voters were in a weaker position to elect the candidates of their choice than they were before the redistricting plan was enacted. This reduction of minority voting strength violated the VRA.
The court also found extensive evidence of discriminatory intent. For example, in the case of congressional redistricting, evidence showed that institutions that generated significant economic activities were removed from an African American Congressman's district. In two other congressional districts represented by African Americans, institutions that generated substantial economic activities were removed along with neighborhoods in which their district offices were located. The court ruled that the legislature removed the "economic guts" from of the black districts but "no such surgery was performed on the districts of Anglo incumbents." Every Anglo member of Congress retained his or her district offices.
The court observed that in the last four decades Texas' redistricting plans had been challenged under the VRA and the state lost in each case. The evidence showed that black and Latino members of Congress were excluded from the process of drafting new legislative maps while the preferences of Anglo representatives were solicited and included. On the basis of this and other evidence of racial gerrymandering, the court ruled that the districts were drawn with an intent to discriminate against black and Latino voters.
Two days after the decision in Texas v. United States, a three-judge panel issued a decision in another case, Texas v. Holder, that struck down Texas' voter-identification law. The Texas law required voters to identify themselves with one of five forms of ID, including a driver’s license or a United States passport. Voters who did not possess one of the five types of identification were required to obtain a government-issued identification card similar to a driver’s license. The court ruled that the law would diminish minority voting and imposed "strict, unforgiving burdens on the poor" by charging fees to obtain election ID cards when voters lacked the required documentation. A disproportionate percentage of individuals adversely affected by the ID law were black and Latino voters.
These are just two of several pending VRA cases. A number of them claim that the VRA is unconstitutional because Section 5 preclearance is no longer needed. Opponents contend that conditions are different now than they were in the 1960s when state and local officials engaged in overt conduct to prevent minorities from exercising the franchise. However, Texas v. United States and Texas v. Holder show that intentional discrimination is not some relic of a distant past. Discrimination is still deep in the heart of Texas as the flagrant conduct of the Republican-dominated Texas legislature clearly shows.
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.