The Justice Department sued Texas on Monday, challenging its new electoral maps at the state and congressional levels. Basically, the lawsuit claims the new Texas maps discriminate against “the state’s growing minority electorate.” And clearly, they do. The problem with the trial is not its factual premise; these are the important steps the Supreme Court has taken over the past eight years to make it easier for conservative states to get away with such undemocratic (and undemocratic) manipulation.
And while Congress can repair much of the damage done by the Supreme Court, its efforts to do so remain mired in the inability of Senate Democrats to overcome or eliminate filibuster. Put simply, the latest front in the battle between the Biden administration and Texas reinforces how fragile our democracy is becoming – and how directly responsible the Supreme Court is.
The latest trial reinforces how fragile our democracy is becoming and how directly responsible the Supreme Court is.
Texas did well in the 2020 census: the second-largest state added 4 million people between 2010 and last year’s tally. Most of this growth has come from minority groups, who now constitute the majority of the state’s population. Indeed, the population of the state of the “Anglos” (non-Latino white Texans) was responsible for only 5 percent of this growth. Among other things, this population boom has earned Texas two new seats in the United States House – it will now elect members from 38 districts, just behind California.
When the Texas legislature convened to redraw the U.S. and state districts in response to the new data, it passed maps that, to put it charitably, do not reflect the actual sources of the population growth. As the Justice Department lawsuit explains, the two new seats in Congress both have an Anglo majority; a district in West Texas with a large Latin American population was redesigned to transform a Latin American majority into a minority, and the minority communities of the Dallas-Fort Worth metroplex were, in the words of the Department of the Justice, “surgically excised” by being attached to different districts with Anglo majorities – some stretching over a hundred miles from Dallas-Fort Worth. And the redesigned lines in the State House are even more, shall we say, aggressive.
The shameless aim of this gerrymandering was to entrench a Republican majority as large as the legislature could. The FiveThirtyEight redistribution tracker predicts that with these cards, Republicans would control 24 of the 38 seats in the United States House, or 63% of the delegation, and have a good chance of ranking 25th in a state than the former President Donald Trump won last year by just 52 percent to 46 percent. This is achieved by expanding the voting power of white non-Latino voters, who make up about 40 percent of the state’s total population but now control 3 out of 5 neighborhoods.
As Ari Berman has documented, Latinos, on the other hand, make up 39% of the population but control only 20% of the districts. And only 2% of districts have a black majority, even though black Texans make up one-eighth of the state’s population. More fundamentally, the cards completely ignore the source of Texas’ explosive population growth, reducing the voting power of the very minority groups that are responsible for nearly all of the state’s size gains.
Prior to 2013, the Texas map would never have come into effect. Texas was a “covered jurisdiction” under federal voting rights law, meaning that changes to its districts would have to obtain “prior approval” from the federal Department of Justice. But in 2013, the Supreme Court, in its 5-4 decision in Shelby County v. Holder, overruled the preclearance requirement by overturning the formula used by Congress to decide which jurisdictions it applied to.
Although the tribunal’s analysis focused on the assertion that the formula was obsolete (and therefore unduly harsh on jurisdictions that had no longer demonstrated patterns of discrimination), as highlighted by the Ministry of Justice trial Justice, “In every round of redistribution since 1970, courts have found that one or more of the state of Texas redistribution plans violated the United States Constitution or the Voting Rights Act. “
Shelby County has effectively canceled the preclearance regime, although it has left a window open for Congress to update the coverage formula. But that did not affect Article 2 of the Voting Rights Act – the central substantive ban in the law on discriminatory racial-based voting rules. Shelby County therefore required litigants to challenge each state’s practices individually, but that did nothing to make those challenges more difficult to overcome.
In July, however, the Supreme Court’s decision in Brnovich v. Democratic National Committee also made it more difficult to enforce Article 2. Writing for a 6-3 majority, Judge Samuel Alito interpreted Article 2 to focus on whether voters of different races have an equal opportunity to exercise the right to vote, rather than if, as Judge Elena Kagan put it in dissent, the state law in question “contributes[s] racial disparity in the possibility of voting, having regard to all the relevant circumstances.
In other words, although Article 2 was intended to prohibit local and state voting rules that create racially disparate impacts of all kinds, the conservative majority read it restrictively to only prohibit rules that deliberately render more difficult for minority voters to participate in the political process. .
It remains to be seen how far this reasoning goes. In this regard, the Biden administration’s retrial against Texas could be an indicator. If the Voting Rights Act can no longer prevent a state that has won seats in Congress almost entirely because of the growth of the minority population from redistributing to reduce the voting power of those minority groups, then will be a powerful testament to the extent to which the Supreme Court has denied this. a historic civil rights law.
The fact that the matter should be closed shows how imperative it is for Congress to resolve it, even if removing the filibuster is the only way to accomplish such reform. As long as these maps remain in force, they will provide only further proof of the fragility of our democracy – and of how less and less representative our “representatives” are.