A federal judge on Monday issued a wide-ranging discovery order requiring Texas state lawmakers to turn over documents related to the state’s congressional redistricting plans.
The underlying lawsuit, filed by the League of United Latin American Citizens and several other civil rights groups, is part of a broad effort to correct what critics say is voter intimidation and discrimination in Texas heading into the 2022 midterm elections.
In a separate case, a variety of civil rights groups are also suing the state over a new election security law, which they say is designed to “intimidate and harass voters.” A different federal judge in May allowed that case to proceed.
Siding with the groups, the U.S. Department of Justice has joined both lawsuits. In addition to being midterm season, Texas this year will also see a tightening race for governor between incumbent Republican Greg Abbott and his Democratic challenger, former U.S. Congressman Beto O’Rourke.
For decades, Republican lawmakers in Texas have faced criticisms for allegedly diluting the power of minority voters.
A 2003 redistricting plan led to years of legal fights. The U.S. Supreme Court ultimately ruled that a West Texas congressional district had been illegally racially gerrymandered but otherwise upheld those voting maps. Additional redistricting plans in 2011 prompted similar controversy. Seven years later, that legal fight was still going on.
The latest round of redistricting in Texas began again after the 2020 census — and Texas voters may be feeling a sense of déjà vu.
In an initial complaint from last October, the League of United Latin American Citizens — which was also a plaintiff in the 2003 case — argued state officials were once again trying to “unlawfully dilute the voting strength of Latinos.” They asked for a permanent injunction requiring the state to redraw its voting maps.
Texas had gained almost 4 million residents since 2010, making it the only state to get two additional congressional seats. But while racial minorities accounted for 95% of the population increase, with Latinos comprising 50%, these new voters were not adequately represented in updated maps, the lawsuit alleges.
The lawsuit pointed to examples like Harris County, home of Houston — where despite the Latino population increasing by more than 350,000 people, there will not be a new Latino majority district under the current plan. It also pointed to cases where the plan “weakens existing Latino majority districts.”
“The failure … to create at least one additional Latino majority House district statewide means that Latinos have lost voting strength in Texas,” the lawsuit alleges. It also alleges other irregularities in the redistricting plan from last year, including a “highly compressed legislative process” which “failed to allow any invited testimony” and in which the Texas Legislature “departed from its normal procedures.”
Texas officials, for their part, have asked the court to dismiss the case. In a motion from October, they argued the plaintiffs do not have standing and have not “identified any allegedly affected voters.”
Like the separate lawsuit over Texas election laws, this redistricting case has continued to swell since its initial filing, with six other lawsuits consolidated into the legal fight. Days after the case was filed, the Fifth Circuit appointed a three-judge panel to oversee the increasingly complex case.
In November, the Justice Department also joined those suing state officials. It was doing so, the federal government said, because Texas redistricting plans had raised “important questions” about possible violations of the Voting Rights Act.
Since then, the case has largely hinged on issues of discovery. Texas lawmakers have battled against subpoenas, arguing that much of their work on redistricting was privileged information. They filed hundreds of pages of court documents detailing information they do not think they should have to turn over, including what they’ve described as “confidential communications” reflecting “thoughts, opinions and mental impressions.”
The Department of Justice, meanwhile, has continued its efforts to enforce subpoenas. The feds argue Texas officials have “inappropriately” claimed attorney-client privilege, refused to turn over documents from decades ago and “advanced an overbroad conception” of legislative privilege that has withheld “even communications with members of the public.” As a result, they say, lawmakers have disclosed “merely one-third” of the documents requested in subpoenas.
In his order on Monday, U.S. District Court Judge David Guaderrama, an Obama appointee, agreed with arguments from the DOJ and the civil rights groups. He found that Texas lawmakers were using overly broad theories of legislative privilege and could not “cloak conversations with executive-branch officials, lobbyists, and other interested outsiders.”
Guaderrama ruled the factors in this case weighed in favor of granting discovery requests. He cited the “seriousness of the litigation and the issues involved,” including allegations of lawbreaking and “intentional discrimination” against minority voters.
While Texas lawmakers asserted attorney-client privilege, the judge ruled they could not simply decline to release any documents referencing legal analysis, including scheduling calendars and communications with outside firms involved in redistricting. These documents are not “categorically privileged,” he wrote.
In the end, Guaderrama ordered Texas lawmakers to turn over a wide array of documents relating to redistricting, including “talking points” defending the maps. For any documents that contained “bona fide legal advice” or “privileged material,” Guaderrama ordered lawmakers to produce redacted versions.
While the order is a win for the DOJ and the civil rights groups who have disputed the legitimacy of Texas redistricting plans, state officials still have the advantage of time.
In past cases involving Texas election changes, final rulings have come out years after disputed elections. Some voters have died before legal fights have ended.
“You’re literally dragging the litigation so long that people are passing away,” one lawyer told The Texas Tribune in 2017.
