As Tropical Storm Harvey continued to roar through Texas, the U.S. Supreme Court quietly issued an order Monday with potentially big implications for voting rights in the state.
Acting alone, Justice Samuel Alito issued a stay in Abbott v. Perez, a federal case that ordered two Texas congressional districts redrawn after finding them racially discriminatory. In real terms, that means Texas can’t fix its allegedly illegal voting maps until the Supreme Court weighs in.
Texas says its districts are fine. Courts have disagreed. In a blistering decision from April, a federal appeals court in San Antonio ruled the state had “turned the Voting Rights Act on its head” when it drew its current congressional districts back in 2011. The court singled out two Texas congressional districts: the 27th, on the Gulf Coast, and the 35th, between Austin and San Antonio.
The 35th, in particular, has become a national symbol for gerrymandering. It starts in Austin and snakes down I-35 for 70 miles, encompassing swaths of north San Antonio. In a 2-1 decision, the three-judge panel found that district was an "improper racial gerrymander." Likewise, they ruled the 27th intentionally disenfranchised Latino voters.
Although politicos are allowed to redraw districts for partisan reasons, the Voting Rights Act strictly forbids racial or ethnic gerrymandering. “The impact of the plan was certainly to reduce minority voting opportunity statewide, resulting in even less proportional representation for minority voters,” the panel wrote of the current Texas districts.
Texas continues to fight these rulings. In August, judges gave the state three days to figure out how it would redraw its voting maps. Instead, Texas asked the Supreme Court to stay that court order.
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“We firmly believe that the maps Texas used in the last three election cycles are lawful and we will aggressively defend the maps on all fronts,” Attorney General Ken Paxton said at the time. He argued the order could do "irreparable harm” by interfering with the next election. (It was a bit of a paradoxical argument, considering the point of the court order was that it would affect the next election.)
In this light, Alito’s order can be seen as a victory for racial gerrymandering in Texas. Some voting rights groups have taken it that way. "It wouldn't surprise us that Justice Alito would take an anti-voting rights position," Matt Angle, a spokesman for the Lone Star Project, told Houston Press. "We don’t want to overreact, but it’s more delay and more uncertainty in a case in which the facts are crystal clear."
“Every time a brief is filed, it costs the taxpayers money," Angle added. "Greg Abbott and Ken Paxton are peeling this out of taxpayers' pockets. We’re in the millions and millions of dollars now that Texans have had to pay to defend a map that discriminates against them.”
Voting activists have a right to feel frustrated right now. But they probably shouldn't freak out just yet. Rather than making a final decision, Alito's move simply delays the case for at least a week as Texas reels from widespread flooding and devastation. Maybe the order was akin to President Donald Trump’s pardon of former Arizona Sheriff Joe Arpaio — a controversial, highly politicized decision during a moment of crisis, while the public’s attention was elsewhere. Or, viewed more charitably, maybe it was exactly the opposite.