Texas recently won a major battle in its congressional and state-legislative redistricting fight. On January 20, the Supreme Court threw out interim maps that had been created out of whole cloth by a three-judge panel in San Antonio, and that, in addition to heavily favoring Democrats, basically ignored the plans drawn by the state legislature. The war goes on in federal court in Texas and the District of Columbia, but the decision was a defeat not only for the NAACP, the League of United Latin American Citizens (LULAC), and other seekers of racial spoils, but also for Eric Holder’s Justice Department.
This case demonstrates the absurdity and fundamental unfairness of Section 5 of the Voting Rights Act (VRA), the supposedly temporary, emergency five-year provision passed in 1965, as well as the way Section 2 of the VRA has been perverted by so-called civil-rights organizations, DOJ, and the courts. They have used the law to make racial gerrymandering the dominating factor in redistricting, and “proportional representation” almost a legal mandate for states that want to avoid expensive and protracted litigation.
Texas is one of nine states covered in whole by Section 5, which essentially places it in federal receivership. Texas has to get administrative approval from DOJ or a federal court in the District of Columbia before it can implement any changes in its voting laws, including its new redistricting plans. Section 5 was supposed to last only five years, and was passed when there was widespread, systematic, official discrimination in parts of the South — a blight that has long since disappeared.
Yet in 2006, Congress renewed Section 5 for another 25 years, cementing in place the continued discriminatory treatment of states under the law. Texas filed a lawsuit in D.C. seeking Section 5 clearance for its redistricting plans under a legal standard that places the burden on the state to show there has been no disparate effect on racial minorities. Texas must prove that it has preserved the status quo — that it has not reduced the number of majority-minority voting districts in Texas. Thus, Section 5 forces states to explicitly take race into account when drawing districts.
At the same time, Texas was sued in federal court in San Antonio under Section 2 of the Voting Rights Act by groups claiming that the state hadn’t created enough new majority-minority districts. Section 2 is the permanent, nationwide provision that prohibits “denial or abridgment of the right” to vote based on race. Section 2 was originally passed to get rid of barriers to registration and voting. Since such barriers no longer exist, it has devolved into a statute used for vote-dilution lawsuits in which plaintiffs such as LULAC claim that a state has not created enough districts where racial and ethnic minorities are a majority of the voters.
In other words, Section 2 is used against states that don’t take race sufficiently into account when they are drawing political district lines. So the statute that was hailed by civil-rights organizations in the 1960s as necessary to end the “sordid business [of] divvying us up by race” in the voting process (as Chief Justice John Roberts said in a prior Texas case) is today used by those same organizations to ensure the sordid divvying up by race in redistricting.
Because Hispanics and blacks make up three-quarters of the population growth of Texas since 2000, LULAC and others are claiming that they should have gotten at least three of the four new congressional districts that Texas received after apportionment. This argument is in direct conflict with a warning in Section 2 that the statute does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.” However, that provision hasn’t prevented plaintiffs or DOJ from making such claims under the veneer of “disparate impact,” wrongly equated with discrimination, or courts from finding against states based largely on such claims.