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Expert Brief

A Stealth Attack on Voting Rights Is Brewing

The Voting Rights Act is celebrated for helping expand the electoral power of African-American and Latino communities, but those gains likely would not have happened if another parallel revolution hadn’t taken place at the same time.

Published: August 6, 2015

Cross-posted on the Texas Tribune

The Voting Rights Act, which became law 50 years ago this month, is rightly celeb­rated for help­ing expand the elect­oral power of African-Amer­ican and Latino communit­ies across the United States. But those gains likely would not have happened, or would have been much dimin­ished, if another paral­lel revolu­tion hadn’t taken place at the same time.

That revolu­tion is the one that star­ted with the Supreme Court’s 1964 decision in Reyn­olds v. Sims, which required states to end discrim­in­at­ory redis­trict­ing prac­tices that overrep­res­en­ted rural areas and small towns in state legis­latures while under­rep­res­ent­ing the boom­ing urban centers to which African-Amer­ic­ans and immig­rants — and Amer­ic­ans of all sorts — were increas­ingly flock­ing.

In the 50 years since the Supreme Court’s repres­ent­a­tion revolu­tion, it has been a bedrock of redis­trict­ing law, followed in Texas and virtu­ally every state, that districts should be drawn to have the same numbers of people. As a result of that revolu­tion, legis­lat­ive seats moved from rural regions to more popu­lous cities and fast-grow­ing suburbs, help­ing to create districts where minor­ity communit­ies — newly empowered under the Voting Rights Act — could make their voices heard.

But that prin­ciple is under attack today in Texas in a case that the Supreme Court will hear this fall, in which a group of litig­ants (backed by the same lawyers who are chal­len­ging the Univer­sity of Texas at Austin’s affirm­at­ive action program) argues that districts should be drawn to contain not equal numbers of people, but equal numbers of eligible voters.

The Texas litig­ants in the case, known as Even­wel v. Abbott, claim that the current Texas Senate map is uncon­sti­tu­tional because up to half of adult Lati­nos in urban areas like Dallas and Hous­ton are non-citizens, mean­ing that many Latino-major­ity state Senate districts have signi­fic­antly fewer actual voters than non-Latino districts.

But chan­ging the rule would under­mine both the repres­ent­a­tion revolu­tion and the Voting Rights Act. Because of the concen­tra­tion of chil­dren and immig­rants in cities and suburbs, draw­ing districts on the basis of eligible voters would shift repres­ent­a­tion back to less-popu­lated areas, recre­at­ing the very sort of repres­ent­a­tional inequal­it­ies the Supreme Court struck down in the 1960s. Moreover, because Lati­nos in places like Texas are often geograph­ic­ally dispersed, the need to find voters to add to Latino-major­ity districts would make it harder to create or main­tain such districts. While districts could still be drawn, they would likely be more open to the chal­lenge that they were uncon­sti­tu­tional racial gerry­manders.

And distilled to its essence, the Texas litig­ants’ beef can be hard to under­stand. To be sure, there are voter dispar­it­ies in the Texas Senate map. But it’s hard to argue that the situ­ation in Texas today is anything like the prob­lems that gave rise to the malap­por­tion­ment cases of the 1960s.

Before Reyn­olds v. Sims, the U.S. suffered from a dramatic malap­por­tion­ment crisis that disem­powered large parts of its popu­la­tion in ways that are hard to imagine today. By 1960, for example, Los Angeles County’s popu­la­tion had boomed to more than 6.1 million people, account­ing for almost 40 percent of Cali­for­nia resid­ents. Yet under the state’s anti­quated consti­tu­tion, the gigantic county had just a single state senator (out of 40) in the Cali­for­nia Legis­lature. Other Cali­for­nia counties with as few as 14,000 people were also entitled to one senator, result­ing in a consti­tu­tion­ally sanc­tioned gerry­mander that guar­an­teed barely 10 percent of Cali­for­nia voters a lock on control of the state Senate.

And Cali­for­nia was hardly unique. Across the coun­try, malap­por­tion­ment left urban and suburban areas under­rep­res­en­ted in state legis­latures and put rural voters in control of import­ant policy decisions on things like schools and infra­struc­ture.

That looks very differ­ent from Texas today.

It is, after all, hard to argue that Lati­nos are overrep­res­en­ted in the Texas Senate. In 2013, Lati­nos made up 38.4 percent of the popu­la­tion in Texas and 26.9 percent of its adult citizen popu­la­tion. By contrast, Lati­nos are currently able to elect their community’s candid­ate of choice in just seven of 31 (22.5 percent) of the districts in the Texas Senate.

In other words, Lati­nos control roughly the same percent­age of Senate seats as their share of Texas’ adult citizen popu­la­tion. That’s a far cry from Cali­for­nia in 1960, when Los Angeles County, with 38.3 percent of the state’s popu­la­tion, had 2.5 percent of its Senate seats. In fact, it could be argued that Lati­nos are still under­rep­res­en­ted in the Texas Senate. Despite a large (and grow­ing) Latino popu­la­tion in the boom­ing Dallas-Fort Worth region, the Legis­lature in 2011 failed to draw a district in the region where a Latino-preferred candid­ate has a shot at winning. Indeed, Texas does not have a single Senate district north of San Anto­nio where Latino-preferred candid­ates win.

The same holds true for the Texas House. Lati­nos are currently able to elect just 33 of 150 of the members of the Texas House, or 22 percent of the body. And as for seats in the U.S. House, only seven of Texas’ 36 congres­sional seats are reli­ably controlled by Latino voters — less than 20 percent of the total.  

But the issue goes well beyond the share of seats. A look at the work­ings of the Texas Legis­lature shows how perni­cious the argu­ment in Even­wel is. Texans just lived through a legis­lat­ive session where the issues that domin­ated lawmakers’ agenda were things like loosen­ing of gun regu­la­tions and the abol­i­tion of in-state tuition rates for undoc­u­mented students — all issues import­ant to conser­vat­ive Anglo primary voters but far from the concerns that Texas Lati­nos say are their top prior­it­ies. And in terms of legis­lat­ive power, members from Latino districts chair just one of the Texas Senate’s 14 commit­tees and nine of 38 commit­tees in the Texas House.

All of this is a far cry from the situ­ation in Cali­for­nia and other states in the 1960s in which a small number of rural voters controlled legis­latures and dictated legis­lat­ive prior­it­ies. By contrast, it’s easier to argue that Latino communit­ies in Texas today have too little repres­ent­a­tion, not too much.