How a Texas redistricting case could revive the Voting Rights Act

A bilingual sign stands outside a polling center at public library ahead of local elections on April 28, 2013 in Austin, Texas.
A bilingual sign stands outside a polling center at public library ahead of local elections on April 28, 2013 in Austin, Texas.

A push to fix the Voting Rights Act has stalled in Washington. But a trial taking place this week in a sleepy San Antonio courtroom could help revive the landmark law without Congress lifting a finger.

At issue in the case is a redistricting plan approved in 2011 by Texas’s Republican legislature. The Obama administration charges that the plan intentionally discriminated against the state’s soaring Hispanic population in an effort to boost the GOP’s share of seats in Congress and the statehouse. Texas admits the plan was designed to help Republicans—which isn’t illegal—but says it did not aim to target Hispanics.

If a three-judge panel rules against Texas, it likely would not affect the state's congressional district maps, because a federal court has already rejected the original maps and created new ones that are fairer. Instead, the implications would be much bigger—potentially even bolstering voting protections for racial minorities in states across the country.

“What happens in Texas will have consequences around the nation,” said Michael Li, an election lawyer who was based in Dallas until recently, and is now at the Brennan Center for Justice at New York University School of Law. “That’s why a lot of voting rights advocates are watching it closely.”

Here’s why: Justice Department lawyers say Texas’s intentional discrimination means the court should put it back under the system of federal “pre-clearance” for its voting laws that was ended when the Supreme Court invalidated Section 5 of the Voting Rights Act last year in the Shelby County ruling. To make that claim, DOJ cites Section 3 of the law, which allows states to be put under federal supervision if they’re found to have shown deliberate racial bias in their voting system.

"They made the decisions on the basis of race. It’s certainly a strong claim for intentional discrimination."'

Section 3 didn’t get much use while Section 5 was still in effect. But since Shelby, it has emerged as a possible savior for voting rights advocates. One influential 2010 law journal article called it the Voting Rights Act’s “secret weapon.”

Intentional discrimination is a high bar to meet. But a federal court has already found it once in connection to Texas's redistricting plan.

That was in 2012, when a court denied Texas pre-clearance under Section 5. During that case, it was revealed that a lawyer for Texas Republicans had sent an emailto one of the map-drawers asking him to “pull the district’s Total Hispanic Population … up to majority status, but leave the Spanish Surname [Registered Voters] and [Turnout] the lowest”—in other words, looking to ensure that the district’s Hispanic voters were those who turned out at a low rate. 

“They made the decisions on the basis of race," said Li. “It’s certainly a strong claim for intentional discrimination.”

If Texas had to get its election changes approved by the federal government—as it used to—it would make it harder for the state to put more restrictive voting laws in place. It could even affect the legal battle over Texas’s strict voter ID law, which goes to trial in September. (The Obama administration has made a Section 3 claim in that case, too.)

But such a ruling would reverberate far beyond the Lone Star State.

By setting a legal precedent, it could give a boost to other voting rights challenges that use Section 3—for instance, the Justice Department’s lawsuit against North Carolina’s sweeping voting law.

And by showing that Section 3 was a viable way to enforce voting protections, it could spur new challenges under the provision, even in places not traditionally seen as hotbeds of discrimination. 

“Anywhere you have rapidly growing minority populations,” along with restrictive voting laws, might see such cases, Li said. He mentioned Ohio, Wisconsin, and Pennsylvania, all of which have in recent years enacted voting restrictions that, evidence suggests, disproportionately affect minorities.

It's a long way off, but the end result could potentially be to put swathes of the country back under the same system of supervision that Shelby removed. Meanwhile, House Republicans have so far refused to give a hearing to bipartisan legislation introduced in January that would achieve a similar effect by restoring Section 5 of the Voting Rights Act.

The trial is expected to wrap up Friday, with a ruling expected in several months’ time.