A federal court has found that two congressional voting districts in Texas are illegal based on racial gerrymandering.
A federal court has found that two congressional voting districts in Texas are illegal based on racial gerrymandering.

Could the Federal Voting Rights Order Against Texas Trigger a Second Special Session?

Even though the 2017 special session adjourned in a stalemate one day early on Tuesday, it might be a little premature to think it's all over just yet. Because Governor Greg Abbott has plenty of reasons he may decide to call a second special session.

On the same day the House and Senate adjourned without passing property tax reform, a federal court ruled that two congressional voting district maps were invalid due in part to intentional racial discrimination, thus violating the Voting Rights Act. Both events tease the possibility that Abbott will call the Legislature back to order for yet more overtime — and on a radio show Wednesday morning, he certainly did not rule it out. Asked if the failure of property tax reform might prompt a second session, Abbott said, "all options are always on the table."

But if it's not property taxes, it may be voting rights.

The panel of three federal judges in San Antonio voted 2-1 that Congressional District 27, represented by Congressman Blake Farenthold (R-Corpus Christi), was drawn with intent to discriminate, while Congressional District 35, home to Congressman Lloyd Doggett (D-Austin) was an "improper racial gerrymander." The ruling means both maps will need to be redrawn in time for the 2018 election, and that lawmakers can't kick the can down the road until the next session. The federal judges gave Texas three days to decide whether it wants the court to redraw the maps for it — or let the Legislature do it. Which would require a special session.

Nina Perales — an attorney with the Mexican American Legal Defense and Educational Fund, which represents the plaintiffs in the voting rights case against the state — declined to express a preference between the three-judge panel or the Legislature drawing up the maps, but said: "In both situations, we are not in the driver's seat. We're either presenting our [proposed] maps to three judges in a courtroom or we're presenting our map to a legislative committee, for example. However, the court has greater expertise in voting rights issues at this point than the many, many individual members of the Texas Legislature."

The voting case against Texas dates back six years, when various voting-rights groups and individual plaintiffs challenged the state's 2011 congressional and voting maps as unconstitutional. In Doggett's district, the court found that the Latino-majority district — which was intended to be a voting-rights district where Latinos could elect a candidate of their choice, Perales said — improperly extended into Travis County, making it an "impermissible racial gerrymander." In Farenthold's district, the court found that the Legislature had intentionally diluted the Latino vote as a way to keep Farenthold's seat. (Plaintiffs challenged a third district, Republican U.S. Congressman Will Hurd's District 23, but the court ruled that it was lawful.)

"Most often, the court has found that the Legislature violated Latino voting rights in an effort to protect an incumbent who is not Latino-preferred," Perales said. "Instead of having Blake Farenthold appeal to Latino voters and get their support, the Legislature decided to gerrymander District 27 in a way that deprived Latino voters in Nueces County of their ability to elect their preferred candidate."

But here's what has made this case particularly complicated: Just ahead of elections in 2012, the court adopted "interim maps" to resolve some, but not all, of the plaintiffs' concerns over illegal gerrymandering across the state. That's why the court warned that the state shouldn't view these maps as a final solution, given the court wasn't done looking at whether Texas's maps discriminated based on race. But nevertheless, Texas officially adopted the interim maps during a 2013 special session, declaring that the lawsuit was now moot because the 2011 maps were gone.

That didn't go over well with the plaintiffs, who objected, saying the discriminatory effects of the 2011 map persisted in the various districts where Texas still made no changes — such as in Doggett's and Farenthold's. And on Tuesday, the federal judges agreed, saying that the Legislature didn't really adopt the court's 2012 interim maps with the belief that it had solved racial discrimination in its maps — but only as a legal strategy to stop the lawsuit.

"[The Legislature's] actions in 2013 were attempting to prevent Plaintiffs from obtaining relief for purposeful racial discrimination," the judges wrote. "In Defendants’ view, Plaintiffs could obtain no relief for the Legislature’s
past discrimination in 2011, and any discriminatory intent and effects remaining in the 2013 plans, however harmful, would be safe from challenge. This strategy is discriminatory at its heart."

Texas Attorney General Ken Paxton said the court's ruling was "puzzling" given the 2013 Legislature had adopted the court's own interim maps. “We look forward to asking the Supreme Court to decide whether Texas had discimrinatory [sic] intent when relying on the district court," he wrote in a statement.

Expect to find out by the end of the week whether you'll have to watch lawmakers tear up the state Capitol all over again this fall. Who knows, given Abbott's philosophy during this past special session was cram as many bills as possible into 30 days, maybe the bathroom bill will even make an appearance on another ambitious agenda.

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