The Independent View: Will Texas Face a Voting Rights Reckoning?

Texas State Rep. Chris Turner, D-Arlington, laid out an Amendment seeking to Bar Texas Attorney General Ken Paxton’s Office from using more Taxpayer Money to Defend a Congressional Map that a Court had just Declared Unconstitutional, Ruling that it was intentionally drawn to Discriminate against Minorities. Paxton's Office had already spent millions of dollars on the Case. As he explained his Amendment, Turner called Texas the “Worst of the Worst” Voting Rights Violators.

The Republican-dominated Chamber was destined to Table the Amendment, pushing it to a pile of Democrats’ other long-shot Proposals. But first, Rep. Larry Phillips strolled to the front mic to defend his colleagues, past and present. “I voted for those maps. I didn't intend to discriminate,” said Phillips, a Veteran House Republican and a Member of its Redistricting Committee in 2011. “I want the attorney general to still fight for those of us that felt like we were doing the right thing for Texas under the Constitution, under the law, and join me in showing that we did not discriminate." Scattered applause echoed in the Chamber. As Phillips turned toward his desk, Rep. Poncho Nevárez, a Democrat from Eagle Pass, stopped him with a pointed question from the back mic. “Larry, do I have to bring the emails that the federal judge perused to come to a ruling so we can talk about what the intent was by the authors and the people working on the bill?” he asked, referring to Emails revealed through a Court Case that pulled back the curtain on some Redistricting deliberations.

A 90-55 vote to Kill the Amendment ended the tense moment on the House floor, but it could not mute the reverberations of 2011, Session marked by emotional Debates about Voting Laws that, in some ways, echoed those from the State's Discriminatory past when "White Primaries" and Poll Taxes aimed to Block Minorities from Voting.
Six years later, a barrage of Federal Court Rulings that the 2011 Legislature intentionally Discriminated against People of Color has forced Texas Leaders to confront the possibility that they strayed too far in meddling with Elections, and put the State at Risk of once again having the Federal Government Monitor its Election Laws. The Cases could answer Nationwide questions about the strength of the U.S. Voting Rights Act, just four years after part of it was gutted.

Would a Trump Justice Department's Civil Rights Division put Texas under Preclearance?

A wave of Judicial Scolding's washed over Texas Lawmakers this Spring:

- A San Antonio-based Panel of Judges flagged three of the State’s 36 Congressional Districts as Illegally Drawn, Ruling that the Legislature “Packed” and “Cracked” certain Populations to Dilute Minorities' Political Clout in a rushed Redistricting Process featuring “Misleading Information” and “Secrecy”.

- Weeks later, the same Judges found fault with the State House Map, also drawn in 2011. The Ruling said Lawmakers intentionally Undercut the Voting Strength of Minorities Statewide and in particular Districts.

- Wedged between those decisions, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi Ruled, for the second time, that Lawmakers purposely Discriminated against Latino and Black Voters in passing Senate Bill 14, a Voter Photo Identification Law considered the Nation’s Strictest. That Law, which Republicans claimed was needed to prevent voter Fraud, required Voters to present one of Seven Forms of Photo ID at the Polls, a narrow list of options that Minorities were less likely to carry.

Minority Rights Groups and Democrats say the recent string of federal Court Rulings show the State has squandered its respite from Federal Oversight. “Texas is at or near the top among jurisdictions who are at most risk of being put back under preclearance — if anybody is going to be,” said Lyle Denniston, the National Constitution Center’s Adviser on Constitutional Literacy and former Longtime Reporter at SCOTUSblog. “The evidence is pretty strong in the Texas Legislature. The question is, is it strong enough for the majority on the Supreme Court?”

The State's Republican Leadership, who have all played roles in the Redistricting and Voter ID fights, downplayed the Rulings throughout most of this year's Legislative Session. During his tenure as Attorney General, Gov. Greg Abbott advised the Legislature and its Map Drawers and initially defended the State against Lawsuits over the Maps and the Voter ID Legislation. He has "no concerns whatsoever," his spokesman John Wittman told the Texas Tribune in early May. Wittman downplayed Abbott's Advisory role in the Redistricting process and accused Democrats of fueling the Voting Rights dispute with "phony cries of racism." "That view can be traced back to trial lawyers whose trade it is to profit from fomenting racial tension, and is echoed by a handful of Democratic lawmakers seeking to undo legislative decisions they disagree with by turning to activist judges," Wittman added.

Despite loud calls from Democrats to try to Fix the Political Maps during the Legislative session, the Republican Chair of the House Committee on Redistricting refused to call any hearings to discuss the Rulings. In late May, however, the near demise of Legislation to soften the strict Voter ID Law set off Republican fears that inaction, specifically on that issue, would trigger a Preclearance Ruling. Lawmakers pushed Senate Bill 5 to the finish line only after Abbott declared it an Emergency item hours before a Bill-killing Deadline. Throughout that sprint, Republicans pushing the Bill made clear they were focused more on placating Judge Ramos, rather than conceding Errors from 2011. “I know a court has ruled otherwise, but as someone who was here in 2011, I don’t believe there’s any evidence that we intended to discriminate,” Rep. Phil King, R-Weatherford, the Bill’s House Sponsor, said during a May Floor Debate. “We didn’t want anyone to be disenfranchised, we didn’t want any disparate impact — we just wanted to be pragmatic.”

According to Democrats, that Legislation won’t go far enough to expand Ballot access, or to save Texas from Federal Oversight. Revisions to the Law don’t absolve the Legislature from any Discriminatory Sins, they’ve argued.

Texas Republicans may be banking on Sympathy from the Supreme Court, where the Redistricting and Voter ID Cases could eventually land. Convincing a Majority on that Body, which is sensitive to States' Rights, to put Texas back under federal Oversight won’t be easy, Denniston and other Experts say. The Judges “are going to be very skeptical about any finding of discriminatory purpose or intent, and are going to insist on it being very current,” Denniston said. “It’s going to be a pretty uphill climb for civil rights groups.”

As the Court battles continue, Texas has emerged as one of few States that could spur a new Era in Federal Electoral Guardianship, and one of its Cases could be the next big one to reach the Supreme Court. But first, Lower Courts must consider whether to slap the State with Preclearance. “The fact that multiple courts are making these findings make it much more likely that it’s not just one aberrant judge making this decision, but a pattern of a problem,” said Rick Hasen, a Professor at the University of California, Irvine's Law School who specializes in Election Law. “Everyone’s watching what happens in Texas.”