After a panel of federal judges ruled on Tuesday that two of Texas's congressional voting districts violate the Voting Rights Act based on illegal racial gerrymandering, the judges gave Texas three days to decide how it wanted to redraw the maps. Was the Texas Legislature going to convene for a second special session to do it—or did Texas just want the court to do it?
On Friday, Texas officials chose neither option.
Maintaining that the Texas Legislature did not engage in intentional racial discrimination when drawing up the maps in 2012, Texas Attorney General Ken Paxton filed a brief with the U.S. Supreme Court, asking the high court to grant a stay and block Tuesday's ruling.
“Judges should get out of the business of drawing maps,” Attorney General Paxton said, as though for some reason judges are less trustworthy map-drawers than a body of politicians who are allowed to gerrymander voting districts for partisan advantage. “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.”
Paxton claims that the judges' order to revise the maps before the 2018 election will do "irreparable harm" to Texas because there's a risk that this will interfere with the election cycle.
"There is no corresponding injury to the plaintiffs," Paxton writes, despite plaintiffs' argument that Texas has been holding elections for the past several years with illegal racially gerrymandered voting districts.
The voting rights case has been pending since 2012, when voting rights groups and affected individuals sued Texas over several congressional and Texas House voting districts they argued were illegally drawn and rife with racial discrimination. The panel of federal judges in San Antonio voted 2-1 that Congressional District 27, represented by U.S. Congressman Blake Farenthold (R-Corpus Christi), was drawn with intent to discriminate against Latinos, depriving them of the ability to choose the candidate to represent them. They ruled that Congressional District 35, home to U.S. Congressman Lloyd Doggett (D-Austin) was an "improper racial gerrymander."
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In 2012, the federal court made various changes to the maps ahead of the 2012 election in order to remedy some gerrymandering problems — but not all of them, which is key to keep in mind. In an attempt to moot the lawsuit, the Texas Legislature officially adopted the court's 2012 interim map during the 2013 special session, despite the court's clear warnings that this interim map did not represent any final determination about whether Texas racially discriminated against voters in many of the districts still at issue and still not fixed.
Now, Texas is arguing that because it adopted the court's own interim map, the state can't be at fault for any racial discrimination in 2011 because that map is moot. The judges, however, disagreed, saying that racial discrimination was still present in the 2013 maps because Texas failed to make any changes to the remaining congressional districts that had racial gerrymandering problems but that the court was unable to resolve in time for the 2012 election.
"In Defendants’ view," judges wrote, "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."
The possibility of a second special session is still not out of the picture, however. In his press release, Paxton indicated that while "Governor Abbott respectfully declines the court’s invitation at this time to ask the Legislature to take up redistricting," if the Supreme Court agrees that the maps are illegal, Abbott reserves the right to call the Legislature back to order.