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Analysis

Breaking Down the Supreme Court’s Texas Redistricting Ruling

On Monday, the Supreme Court upheld Texas’s controversial redistricting plan, issuing a ruling that could make it much harder to use the courts to stop racially discriminatory voting laws of all kinds. Here’s what you need to know:

June 26, 2018

What is the Texas redis­trict­ing case about?

The Texas redis­trict­ing case, Abbott v. Perez, is one of the decade’s longest-running and most complic­ated redis­trict­ing sagas, involving not one but two sets of state house and congres­sional maps.

The Texas Legis­lature passed the first set of maps in 2011 follow­ing Texas’ receipt of updated popu­la­tion data from the Census Bureau. However, the new maps drew almost imme­di­ate legal chal­lenges from Latino and African-Amer­ican voters. Because Texas was unable to get the maps preapproved by the federal govern­ment before the start of the 2012 elec­tion cycle (some­thing required at the time under section 5 of Voting Rights Act), a panel of federal judges in San Anto­nio found itself need­ing to put tempor­ary maps in place. That process itself proved to be complic­ated.

The Supreme Court rejec­ted the panel’s first tempor­ary maps, hold­ing that the district court had been insuf­fi­ciently defer­en­tial to the maps passed by the legis­lature and had made changes without strong enough evid­ence of legal defects. The panel then drew a second set of tempor­ary maps with more limited changes. The panel stressed, however, that its maps were “prelim­in­ary and tempor­ary” and that other changes might be needed based on the evid­ence at trial.

Texas used this second set of tempor­ary maps for the 2012 elec­tions. Texas lawmakers then decided to adopt the tempor­ary maps on a perman­ent basis, which they did with minimal changes in 2013.

Mean­while, the district court held several weeks of trial, result­ing first in rulings that 2011 maps had been inten­tion­ally discrim­in­at­ory and then in rulings that the 2013 maps had inten­tion­ally carried forward many of those discrim­in­at­ory features.

The district court also ruled in favor of the plaintiffs on some, but not all, of their claims that vari­ous districts were racial gerry­manders and/or viol­ated the Voting Rights Act by fail­ing to create adequate elect­oral oppor­tun­it­ies for Lati­nos and African Amer­ic­ans. 
 

What claims did Texas take to the Supreme Court?

The heart of the appeal was Texas’ request for Supreme Court to review of find­ings it had inten­tion­ally discrim­in­ated in adop­tion of the 2013 maps. (Find­ings about the 2011 maps were not at issue.) 

Those find­ings are signi­fic­ant because had they been upheld, the district court could have used the “bail-in” of the Voting Rights Act to put Texas back under an oblig­a­tion to get elec­tion laws pre-approved before putting them into effect. This is some­thing that Texas, like most other south­ern states and a hand­ful of other juris­dic­tions, had been required to do under other provi­sions of the Voting Rights Act prior to the Supreme Court’s decision in Shelby Co. v. Holder.

In addi­tion, Texas also asked for review of find­ings that some state house and congres­sional districts were racial gerry­manders or viol­ated the Voting Rights Act.
 

Who are the winners and losers from the Texas redis­trict­ing decision?

Texas, of course, is the big winner. Not only did it win reversal of key inten­tional discrim­in­a­tion find­ings, but it also prevailed on all but one claims about racial gerry­man­der­ing or viol­a­tions of the Voting Rights Act.

The losers are poten­tially far greater. Indeed, the rami­fic­a­tions of the Supreme Court’s decision go well beyond Texas – and well beyond redis­trict­ing cases. By creat­ing a highly defer­en­tial stand­ard for review­ing the actions of legis­latures, the Supreme Court has made it harder for those chal­len­ging not only redis­trict­ing plans but a whole host of other discrim­in­at­ory voting laws, ranging from voter ID laws to cutbacks in polling place hours.

The decision also creates a signi­fic­ant disin­cent­ive for plaintiffs in redis­trict­ing and voting rights cases to seek tempor­ary relief for fear that states might then try to lock in an imper­fect fix.

The decision, in short, puts to bed any linger­ing ques­tions about what minor­ity voters lost when the Supreme Court gutted section 5 of the Voting Rights Act.
 

Will there be any more changes to Texas’ maps this decade?

For the most part, no.

Changes will need to be made to State House District 90 in Tarrant County to address the Court’s ruling that the district is an uncon­sti­tu­tional racial gerry­mander. However, those changes will likely impact at most two or three districts.

Other than those adjust­ments, no further changes will be made to the Texas maps until the next round of redis­trict­ing in 2021.
 

Does the ruling end efforts to put Texas back under preclear­ance?

Not neces­sar­ily. But bail-in would need to be based on the 2011 maps.

Unlike the 2013 maps, rulings about the 2011 maps were not before the Supreme Court and could poten­tially serve as the basis for bail-in if, that is, the plaintiffs choose to proceed with those claims.

Of course, as with the find­ings about the 2013 maps, the Supreme Court will ulti­mately have the last word.