As you know, during the most recent special session the Legislature finally adopted redistricting maps for the Texas House, Texas Senate, U.S. House of Representatives, and State Board of Education, the first step in what is likely to become a lengthy legal battle over the state’s political landscape for the next decade. A lawsuit has already been filed in El Paso federal district court alleging that each of the new maps violates Section 2 of the Voting Rights Act. Section 2 authorizes judicial review of redistricting plans against claims that they deny or abridge voting rights on the basis of race, color, or membership in one of the language minority group identified in the VRA. Although a Section 2 violation does not require a finding of discriminatory intent, the U.S. Supreme Court has established a high burden for plaintiffs. For vote dilution claim, plaintiffs must show that: (1) the affected minority group is sufficiently large to elect a representative of its choice; (2) the minority group is politically cohesive; and (3) white majority voters vote sufficiently as a bloc to usually defeat the minority group’s preferred candidates. In historically less frequent vote deprivation claims under Section 2, the plaintiff must show specifically how a voting process or district disenfranchises a minority group. These claims have not widely prospered in the federal courts to date but are likely to become more numerous in the wake of SCOTUS’s elimination of the VRA’s Section 5 preclearance requirement in Shelby County v. Holder, 133 S.Ct. 2612 (2013), and the spate of election security bills recently enacted in several states.

The complaint, filed by the Mexican American Legal Defense Fund (MALDEF) on behalf of the League of United Latin American Citizens, Southwest Voter Registration Education Project, American GI Forum, La Unión Pueblo Entero, Mexican American Bar Association, and the Texas Association of Latino Administrators and Superintendents, alleges that the maps dilute Latino voting strength in violation of the U.S. Constitution and Section 2 of the VRA. The plaintiffs seek a declaratory judgment that the maps intentionally discriminate against Latino voters and ask the court for a permanent injunction against any election held under them. They further request the court to draw new maps and to award costs and attorney’s fees.

In 2011 MALDEF and other groups successfully challenged the Legislature’s maps in part, but that litigation occurred in a different context than exists today. In 2011 Texas had to seek preclearance from the Department of Justice under Section 5, VRA, which it failed to obtain for the House, Senate, and congressional maps. The first case, Davis v. Perry, initially resulted in a San Antonio federal court-ordered interim map for the Texas Senate. SCOTUS vacated the order and remanded to the court, which drew a second interim map in compliance with SCOTUS’s order for the 2012 election. The following year the Legislature codified the court-drawn Senate map. Another challenge to the Senate plan, however, was brought in 2014, alleging that it violated the one person, one vote requirement of the 14th Amendment. The three-judge federal panel dismissed the case, Evenwel v. Perry, and SCOTUS affirmed.

Similar litigation filed in 2011, Perez v. Perry, challenged the Texas House and congressional plans. Again, the federal court drew up interim plans, SCOTUS vacated and remanded, and a second round of interim plans governed the 2012 House and congressional elections. By virtue of the delay caused by the legal process, the 2012 primary and runoff elections were shifted to May and July. The Legislature followed in 2013 by codifying the court-drawn maps. Unlike in Davis v. Perry, however, the Perez plaintiffs pursued the intentional discrimination claims against the 2011 House and congressional maps. A three-judge panel concluded that it could not address those claims adequately in advance of the 2014 elections, so it ordered that election to proceed under the legislative maps. In August of that year, the panel found that the 2011 congressional map intentionally diluted minority voting opportunity and racially gerrymandered districts in the Dallas-Fort Worth and Bexar County-South Texas regions. The challenge to the 2013 map that controlled the 2012 and 2014 elections was not decided until 2017, when the district court found that two districts were enacted with intentional discriminatory purpose. The state appealed the district court’s ruling to SCOTUS, which upheld the 2013 congressional map enacted by the Legislature by a 5-4 majority. Importantly, the Court held that a plaintiff making an intentional vote dilution claim with respect to a specific map must overcome a presumption that the Legislature acted in good faith, so it could not use a finding of intentional discrimination in the 2011 plan to impute the same motive to the 2013 Legislature. This decision effectively ended the litigation cycle pertaining to the 2011 redistricting session.

By now you are as confused as we are, but the upshot is that we have some reason to expect several years to litigation to ensue from the 2021 redistricting session. That being said, however, voter dilution claims are very difficult to make. Out of the post-2011 cluster of cases, for example, the court ended up modifying only a small handful of congressional districts for the 2012 election, which subsequently held for the remainder of the decade. If 2011 is any guide, a possible scenario is that the El Paso case might result in a court-drawn map for one or more of the House, Senate, and congressional seats, which the state will immediately appeal to SCOTUS. If it does the same thing it did in early 2012, SCOTUS will vacate the district court map and remand with instructions to follow the legislative maps more closely. This could result, as it did in 2012, in a two-month delay in the primary and runoff elections. After that, the Legislature would likely codify those maps for 2024 and beyond. Of course, other parties may file additional challenges, so what will happen is anyone’s guess. Still, if past is prologue, there is good reason to think that the Legislature’s work will substantially prevail in the long run.

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