Will Federal Judges Be Able to Fix Texas Voting Rights Before 2018 Elections?

While Texas lawmakers dive into an encore legislative session at the capitol this month, a few high-ranking federal judges are quietly weighing whether or not the legislature intentionally passed laws that discriminate against minorities.

These decisions are based on two separate, long-brewing cases, both rooted in Texas election laws, both rushing to wrap up before the looming 2018 election cycle, and both guaranteed to significantly shake up national politics.

The first legal battle began in 2011, when the Texas Legislature drafted new state and congressional districts to keep up with the quickly-expanding population. Most of those new Texans were Latino and African American — a shift that eventually made white Texans a minority population in the state. According to voting rights advocates and federal judges, conservative lawmakers weren't eager about their new black and brown (and predominantly Democrat) neighbors. So, they claim, the GOP-led legislature redrew district lines to dilute the votes of new black and brown Texans.

After voting rights groups sued the state for passing the new maps, Texas adopted temporary, court-drawn maps for the 2012 election cycle. Despite a Washington D.C. federal court ruling that these temporary maps were still discriminatory, the state legislature made these boundaries permanent in 2013.

These maps remain tangled in litigation. In March, a panel of three federal judges ruled that three of Texas congressional districts were illegally drawn in 2011 to intentionally suppress minority votes. A month later, the same trio of judges said the same “intentional discrimination” played a role in drawing a number of state House districts in 2011.

Civil rights attorneys for the plaintiffs in these cases argued that since the current district maps adopted in 2013 still contain portions of the now-illegal districts, judges should order the state to redraw them prior to the 2018 elections. These attorneys brought their arguments to court last week, clashing with lawyers from Texas Attorney General Ken Paxton's office over the constitutionality of the 2013 map in front of that same three-judge panel.

With testimony from Texas members of Congress and state House representatives, stacks of detailed, color-coded maps, and a flurry of state demographic data, the six-day trial left the judges — Orlando Garcia and Xavier Rodriguez, both of the U.S. District Court for the Western District of Texas and Judge Jerry E. Smith of the 5th U.S. Circuit Court of Appeals — with a slew of unanswered questions. Most of them were directed at the state attorneys, who blocked evidence from lawmakers due to “legislative privilege,” a rule that protects state lawmakers from sharing any documents, emails, or even their “thoughts and mental impression” on bills. This evidence could have helped the state prove that lawmakers weren’t intentionally racist when they accepted the 2013 district maps — so judges saw its absence troubling.

“Had [the evidence] been favorable, I’m sure you would have raised it,” Garcia told Matthew Frederick, the state's deputy solicitor general, on the last day in court.

Michael Li, an attorney with the Brennan Center for Justice's Democracy Program who has been following and writing about the court case since the beginning, said he believes the state attorneys only withheld evidence because they didn’t have any to show.

“They made no effort to iron out the claims made against them,” he said. “It’s a little befuddling.”

The state’s main line of defense was that the legislature had simply adopted the 2012 maps drawn by a San Antonio court, shifting the blame away from state lawmakers. If there was discrimination woven into the district maps, it was on the courts.

The plaintiffs’ attorneys, however, argued that state lawmakers were well-aware that a D.C. federal court still found the San Antonio court maps unconstitutional. They had the chance to fix these voting rights violations in 2013, but instead simply adopted the locally-drawn maps. “It’s like the state repeated the mistakes they made in 2011, digging their heels in,” Jose Garza, an attorney for the Mexican American Legislative Caucus, told reporters Saturday.

This case doesn’t only have the power to significantly shift Texas politics, it could shake state representation across the country. For decades, courts have allowed lawmakers to draw district lines based on partisanship, even when it’s clear the districts misrepresent the state.

“The Supreme Court has never clearly defined when a map goes too far in regards to partisanship,” Li said. “But it has said you can’t discriminate on the basis of race. That’s what makes this argument safer.”

The other pending voter discrimination case comes out of U.S. District Judge Nelva Ramos' Corpus Christi federal court, where voting rights groups have argued Texas’ narrow laws around what ID a person must show to be able to vote in Texas intentionally blocks minority voters from casting a ballot. Like the redistricting case, this issue has been floating through the state and federal justice system for several years — and Ramos has already ruled (twice) that past iterations of the law were intentionally racist, since black and Latino voters are less likely to have one of the seven state mandated forms of ID. Now, the judge is mulling over whether or not a new piece of legislation solves this problem by allowing ID-less voters to sign a letter swearing they are who they say they are before voting.

Judges in both of these cases are expected to unleash a ruling by the end of the summer. But that doesn’t guarantee either problem will be solved before 2018 elections. If either court rules against the state, they’re expected to make an appeal. An appeal of the voter ID ruling would bump the case up to the 5th Circuit Court of Appeals, while an appeal to the redistricting ruling would send the case straight to the U.S. Supreme Court. Even if these cases whip through court, it’s unlikely they’ll be resolved in time for early 2018 elections.

But in Texas, this perpetual struggle to adequately represent Latino and African American voters has become the norm, said Li.

“It’s messy,” he said. “But welcome to Texas.”