On Monday, the Supreme Court gave Republican gerrymandering a major boost when it reversed a district court ruling that had struck down Texas’ GOP-drawn congressional map for intentionally discriminating against black and Latino voters.
The GOP’s victory was almost total: The Supreme Court’s conservative majority overturned the lower court as to every congressional district it had invalidated, and all but one of the state House districts it struck down. But beyond just this case, the high court’s five-to-four decision further erodes the Voting Rights Act on the fifth anniversary of its landmark decision that gutted a key part of the VRA.
This dispute, which has been trudging on for seven long years thanks in part to an apparent slow-walk by conservative judges, has hinged on a key aspect of the VRA that penalizes lawmakers when they act with discriminatory intent. Had the lower court’s ruling stood up, Texas would have been required to draw new maps, and it might have faced further sanction as well. Now it has avoided the former and very likely the latter, too.
The Supreme Court’s questionable ruling relied on the dubious notion that the Republicans who crafted Texas’ maps were entitled to a presumption that they acted in good faith. The record, however, shows otherwise.
As we have previously explained, Texas could have drawn three more congressional districts that would have let Latino voters elect their preferred candidates. Instead, they passed the gerrymander shown at the top of this post, which not only deprived Latinos of these seats but likely cost Democrats four or five districts in 2016, making it one of the most consequential Republican gerrymanders in the country.
And it all became possible because of the Supreme Court. Until 2013, the VRA required states with a history of discriminatory voting laws like Texas to “preclear” any proposed changes to election laws with the Department of Justice, which could block them if they were found to adversely affect the rights of minorities. That included new redistricting plans.
When Texas passed a new set of maps at the start of the decade, the Obama Justice Department denied preclearance for the state’s congressional and state House plans. Litigation immediately ensued, but with limited time to adjudicate the matter ahead of the 2012 elections, a federal district court wound up modifying the GOP’s proposals only modestly, to curtail their discriminatory impact on an interim basis.
Those court-imposed maps were not meant to serve as permanent solution to the question of whether Republicans violated federal law in drawing it, as the judges who crafted it noted at the time. Instead, they were meant as a placeholder in anticipation of further litigation. And even though the court had sought to rein in the Republicans’ overreach, some of its interim districts were nevertheless nearly identical to several those that made the GOP’s original proposals so suspect.
It’s likely, as subsequent events showed, that these temporary plans would have required considerable amendment, but the trajectory of the case challenging them changed dramatically in 2013. That year, the Supreme Court struck down the VRA’s preclearance requirements, meaning Republicans no longer needed the approval of the Justice Department to pass new districting plans. Sensing an opportunty, they quickly made the court’s temporary maps permanent.
The district court delayed for years in adjudicating the case, but last year, it finally ruled that the 2011 congressional and state House maps did indeed intentionally discriminate against black and Latino voters. However, those 2011 maps had never actually taken effect. Plaintiffs therefore had to argue in a separate trial before the same three-judge district court panel that the 2013 maps also bore the hallmarks of intentional discrimination because of how similar many of the districts in that plan were to those in the 2011 map.
The plaintiffs won that case, too, but the Supreme Court reversed that decision. In essence, the justices allowed Texas Republicans to launder their original maps through the judicial system, holding that the discriminatory intent the district court found with regard to the 2011 maps couldn’t carry over to the 2013 maps.
Consequently, election law experts, including professor Rick Hasen, have argued that this presumption of good faith will make it almost impossible for plaintiffs to prove intentional discrimination in future cases, absent a very unlikely smoking gun. Furthermore, it makes it very difficult for challengers to try to revive preclearance for states like Texas by means of a little-used provision of the VRA that allows for states to be placed back under preclearance for up to 10 years if officials have been found to engage in intentional discrimination.
This ruling is yet another in a line of cases that has seen the conservative-dominated Supreme Court continue to chip away at the Voting Rights Act. Yet even the majority’s opinion didn’t go far enough for Justices Clarence Thomas and Neil Gorsuch, who argued the VRA doesn’t apply to redistricting. And if Donald Trump ever gets to replace conservative swing Justice Anthony Kennedy or a liberal with another justice like Gorsuch, we can expect far darker days ahead for the future of voting rights.
This story has been updated.
