Texas Is Playing A Major Role In Another Important Test Of The Voting Rights Act

May 2, 2019

A federal judge in San Antonio will hear arguments Thursday over whether Texas should have to clear its political maps with the federal government in 2021.

Any ruling on this question would be a test of a little-known part of the Voting Rights Act, sweeping legislation passed during the civil rights movement.

“This is pretty uncharted territory,” said Michael Li, senior counsel for the Brennan Center for Justice’s Democracy Program. “Texas will be the first big test of this, and so it’s something that certainly people around the country are watching closely.”

The hearing is part of a larger lawsuit from Texas voters who challenged the state’s 2011 redistricting efforts. A few years ago, courts found that state officials intentionally discriminated against racial minorities when they drew those maps and ordered parts of the maps to be redrawn.

This latest legal challenge will test a provision in Section 3 of the Voting Rights Act. The provision could require any state, county or city that is found to have intentionally discriminated against voters to be put under federal preclearance. That means the jurisdiction would have to clear any political maps or voting or election laws with either the U.S. Department of Justice or a federal court.

Texas had been under federal preclearance several years ago under Section 5 of the Voting Rights Act, which mandated preclearance for states and local governments with a history of racist voting laws. The U.S. Supreme Court struck down that part of the law in 2013, though.

Since then, the only way to require federal oversight of election laws is through litigation.

“The Texas case will be a big test of whether the Voting Rights Act has any teeth after the gutting of Section 5 of the Voting Rights Act,” Li said.

Nina Perales, the vice president of litigation for MALDEF, said there's evidence Texas officials have discriminated against communities of color.

“The fact that Texas has not just recently discriminated on the basis of race in redistricting, but that also this voter purge targeted naturalized citizens is very relevant to the consideration about what the courts should do next with Texas,” she said.

In a deal approved Monday, Texas officials agreed to stop a flawed effort to remove alleged noncitizens from the state’s voter rolls after evidence that many of the flagged voters were recently naturalized citizens.

If the court sides with the plaintiffs in the latest case, the state will have to clear only maps – not voting laws – with the federal government.

According to Li, what the plaintiffs are asking for would apply only to statewide redistricting plans within a relatively short period of time. One proposal is requesting federal preclearance until 2030; another seeks just five years of oversight.

“It’s a limited thing to get through the next round of redistricting,” Li said.

The state’s legal team has argued even limited federal preclearance is not necessary, because the state isn’t using the 2011 maps that were struck down.

If the courts side with the plaintiffs, Li said, it would be a “huge power shift."

“The burden would be on the state of Texas to prove that the maps weren’t discriminatory and it hadn’t reduced minority voting power,” he said. “It sort of puts the burden on the state instead of on individual plaintiffs and individual voters."