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On Monday, the United States Supreme Court overturned almost entirely a lower court ruling that had invalidated several political districts in Texas for harming the voting power of racial minorities. These final weeks of the Supreme Court’s term have been defined by narrow technical rulings in contentious cases on issues such as partisan gerrymandering and religious liberty. Today’s 5-to-4 decision on racial gerrymandering in Texas veers from that pattern, experts say. The case, Abbott v. Perez, had been litigated over seven years and three election cycles. With the decision coming less than two years away from a new round of redistricting, the ruling could have significant implications for voting rights lawsuits. “There was a lot of evidence of discriminatory intent in the [Texas] map that the [high] court sort of ignored,” says Michael Li, of the Brennan Center for Justice at New York University Law School, “and today’s ruling shows a huge presumption of good faith even in a situation like Texas.” The decision, he adds, could have “huge ramifications for voting rights law more generally, well beyond Texas.”
In a decision split along ideological lines, the United States Supreme Court Monday overturned almost entirely a lower court ruling that had invalidated several political districts in Texas for harming the voting power of racial minorities.
These final weeks of the Supreme Court’s term have been defined by narrow technical rulings in contentious cases on issues such as partisan gerrymandering and religious liberty. Today’s decision on racial gerrymandering in Texas veers from that pattern, experts say. Less than two years away from a new round of redistricting, it could have significant implications for voting rights lawsuits.
“There was a lot of evidence of discriminatory intent in the [Texas] map that the [high] court sort of ignored,” says Michael Li, a senior counsel at the Brennan Center for Justice at New York University Law School, “and today’s ruling shows a huge presumption of good faith even in a situation like Texas.”
The decision could have “huge ramifications for voting rights law more generally, well beyond Texas,” he adds. “It’s very disappointing and in a lot of ways disturbing.”
Lower court ‘critically flawed’
The case, Abbott v. Perez, has been litigated over seven years and three election cycles, dating back to when the Texas legislature drew new district maps following the 2010 Census. Minority voters and advocacy groups sued almost immediately, claiming several of the new districts were gerrymandered to dilute or otherwise harm minority voting power. Federal district courts in both San Antonio and Washington ruled that the 2011 map intentionally discriminated against minority voters – the latter because, at the time, Texas was required under the Voting Rights Act (VRA) to have any changes affecting voting “precleared” by the court. An interim map drawn by the Texas court was used in the 2012 election.
While the Texas court wrote that its interim map didn’t entirely address the intentional discrimination in the 2011 map, the state legislature adopted it as its permanent district map in a 2013 special session. That map was then used in the 2014 and 2016 elections while litigation continued. A three-judge panel of the district court in San Antonio eventually ruled last year that the interim map it had drawn still carried the “taint” of intentional discrimination found in the 2011 map and invalidated seven state house districts and two congressional districts.
Monday’s majority opinion, written by Justice Samuel Alito and joined by the court’s four other conservative justices, reversed that decision almost entirely, with one exception: One of the nine invalidated districts, a state house district in Fort Worth, is racially gerrymandered and needs to be redrawn, he wrote.
Texas Attorney General Ken Paxton hailed the decision in a statement as “a huge win for the Constitution, Texas, and the democratic process.”
“The court rightly recognized that the Constitution protects the right of Texans to draw their own legislative districts, and rejected the misguided efforts by unelected federal judges to wrest control of Texas elections from Texas voters,” he added.
The “essential pillar” of the three-judge panel’s reasoning “was critically flawed,” Justice Alito wrote because “it was the challengers’ burden to show that the 2013 [Texas] legislature acted with discriminatory intent.”
“The 2013 legislature was not obligated to show that it had ‘cured’ the unlawful intent that the court attributed to the 2011 legislature,” he added.
When thus viewed “under the proper legal standards” – meaning with the plaintiffs having to prove that Texas engaged in intentional discrimination when it adopted the interim map in 2013 – the high court ruled that “there is no evidence that the legislature’s aim was to gain acceptance of plans that it knew were unlawful.”
The actions of the 2011 legislature are not irrelevant, Alito continued in his opinion, but the three-judge panel should have given those factors less weight than it did.
“When all the relevant evidence in the record is taken into account,” he wrote, “it is plainly insufficient to prove that the 2013 Legislature acted in bad faith and engaged in intentional discrimination.”
‘What’s the use of Section 3?’
This analysis represents a significant departure from typical Supreme Court practice in a few ways, however, according to experts and the court’s four dissenting justices.
“The court seemed to not give deference to the district court’s actual [factual] findings, which we would normally expect the Supreme Court to do,” says Steven Schwinn, an associate professor at the John Marshall Law School in Chicago.
Cases that examine voting rights issues, such as claims of racial gerrymandering or racially discriminatory voter ID laws, are usually very fact-heavy and fact-specific. It is typically the job of the district court to review evidence, gather witness testimony, and do everything else necessary to determine, based on the facts, whether certain voter districts or voting laws are racially discriminatory or not.
“So when trial judge makes fact-findings based on hearing evidence, the appellate courts are supposed to defer to that fact-finding under the law because appellate courts don’t have the chance to do all that stuff,” says Professor Schwinn.
“You’ve got a very extensive factual record here that a majority of the Supreme Court seemed to be willing to disregard, or play fast and loose with,” he adds.
In her dissent, Justice Sonia Sotomayor – joined by the court’s three other liberal-leaning justices – wrote that the district court had followed its requirements to factually prove intentional racial discrimination “virtually to a tee … having presided over years of litigation and seeing firsthand all of the evidence.” (Alito, in a footnote, struck back at her on this point, writing that the dissent “is simply wrong in claiming over and over that we have not thoroughly examined the record.”)
Furthermore, in using that evidentiary record to leave all but one of Texas’s disputed voting districts intact, the high court’s decision “will make it harder for people to bring these sorts of claims in the future,” says Mr. Li of the Brennan Center.
“Normally you assume the legislature is acting in good faith, but not when the legislature has a history of having intentionally discriminated,” he adds.
Its history of intentional discrimination against minority voters had kept Texas among a group of states that were required to have changes to their voting laws “precleared” by a federal court under Section 5 of the VRA – essentially, Texas had to prove to the court that the changes weren’t intentionally discriminatory. The Supreme Court’s 2013 decision in Shelby County v. Holder – five years ago today – declared Section 5 unconstitutional.
That decision still left plaintiffs with an avenue to address potentially discriminatory voting laws under Section 3 of the VRA. Under that section, if plaintiffs are able to show that a jurisdiction or state intentionally discriminated, a court could order the jurisdiction or state back into preclearance.
With its decision today, the Supreme Court has set a very high bar for plaintiffs to prove intentional discrimination in these kinds of cases, experts say.
“If what happened in Texas [since 2011] is not powerful enough [evidence of discriminatory intent] it’s really hard to imagine what would be,” says Li.
“The trigger for Section 3 is intentional discrimination, and if effectively because of the Texas decision you have a really hard time proving intentional discrimination, what’s the use of Section 3?” he adds.
States following suit?
Today’s decision also comes at a time when other former preclearance jurisdictions are looking to implement controversial changes to their voting laws.
In North Carolina – which last year had a change to its voting laws thrown out by a federal court because it targeted African-American voters “with almost surgical precision” – legislators have introduced a bill that would eliminate the final Saturday of early voting in state elections, a day that often draws large numbers of black voters. And in Alabama the state government has made a series of changes since the Shelby County decision that have restricted voting access, including passing a voter ID law, closing driver’s license offices in heavily African-American counties, and purging voter rolls.
Narrow decisions on technical or procedural grounds have allowed the Supreme Court to both find some consensus and avoid potential controversy so far this term. Its 6-to-3 decision in a case about a cake-shop owner who refused to serve a gay couple, for example, focused on procedural errors in a lower court. In two cases about partisan gerrymandering the justices decided, unanimously, to punt on the merits.
The justices could have done similar with today’s decision. The court’s ability to rule on the merits of the case was far from clear, since the lower court had not issued a formal injunction preventing Texas from using its old map, the usual trigger for Supreme Court review.
“If the court wanted to write this case in a narrow way, what it should have done is say that it lacked jurisdiction,” says Schwinn. “The court did not take up the narrowing option.”