There was a little-noticed lawsuit filed in federal court this week.
Lawyers representing six Latino voters in Texas argue the way we elect judges for the Texas Court of Criminal Appeals and the Texas Supreme Court violates the Voting Rights Act because it denies Latino voters an equal opportunity to elect judges of their choice.
“The promise of the Voting Rights Act is that the minority community will have a voice at the table in all our political and governmental institutions,” said Jose Garza with Garza Golando Moran in San Antonio, one of the law firms representing the plaintiffs in this case.
The Lawyers’ Committee for Civil Rights Under Law and the Dechert law firm in Austin are also part of the legal team challenging the state. They argue in a legal challenge filed with the U.S. District Court in the Southern District of Texas on Wednesday that at-large districts are the main culprit.
They take particular issue with 18 high court judgeships in Texas that are elected statewide. That’s nine in the State Supreme Court and nine in Criminal Appeals.
‘No voice at the table’
Garza said these at-large elections are a problem for people of color because white Texans comprise the majority of the voting population here, making it difficult for non-white Texans to win those elections.
As a result, since 1945, about four percent of the 48 judges to serve on the Court of Criminal Appeals have been Latino. In that same period, roughly six percent of the 77 state Supreme Court justices were Latino. That’s even as the state’s Latino population has continued to grow.
“Over the last 25 years, the Latino community has had no voice at the table in terms of the very important decision that come out of those august bodies,” Garza explained.
Lower rates of reelection
Michele Jawando, the VP of Legal Progress at the left-leaning Center for American Progress in D.C., has looked into why high courts in states like Texas are lacking diversity.
She looked at reelection rates for incumbents to state Supreme Courts across the country. Texas is one of only seven states in the country that elects Supreme Court justices in partisan elections.
“Disproportionately white justices are able to be reelected and both black and Latino justices are reelected at much lower rates,” Jawando explained.
Facing unique barriers
For the most part, people of color got on the bench when they were appointed by a governor. In Texas, the Governor appoints justices when there’s a vacancy; that is, when a justice dies or resigns within their six-year term. Jawando said once election time came, these justices were less likely to keep that seat.
“What we find are a few things: We still know that we live in a time where we have racially polarized voting – we know this to be true — and we also know that candidates of color have unique barriers, including their inability to raise sufficient campaign funds,” Jawando said.
In Texas, there’s a fairly well-known example of this. In 2011, Xavier Rodriguez was appointed to the Texas Supreme Court by then-Republican Gov. Rick Perry.
Rodriguez went to Harvard, he has a graduate degree and went to UT law school. Later, he’d make partner at one of the biggest law firms in the U.S. The Texas Supreme Court was the next big step in his career. But the year after he was appointed, Rodriguez lost the Republican primary for that seat to another lawyer, Steven Wayne Smith. Smith was best known for successfully fighting affirmative action policies for law schools in Texas.
Smith eventually lost his reelection and Rodriguez was appointed by George W. Bush to the U.S. District Court in West Texas. However, Smith told The Houston Chronicle at the time that he ran against Rodriguez because he thought a Hispanic wouldn’t do well in the Republican primary.
Trying to break a losing streak
And according to research conducted by attorneys in this legal challenge, and similar races, he’s right. Garza looked at years of high court elections here in Texas. In particular, elections to the Texas Supreme Court and the Court of Criminal Appeals.
“In reviewing those elections, we found that over the last 25 or 30 years every candidate that is supported by the Latino community has lost,” Garza said.
That’s why Garza and others are asking a U.S. District Court to block the use of at-large elections for these high courts. Instead, Garza said there should be single member districts – dividing up the state into nine districts.
As of now there isn’t much precedence for this, but if this case goes anywhere this could have national ramifications.
The named defendants in this case are Gov. Greg Abbott and Texas Secretary of State Carlos Cascos. The governor’s office declined to comment. The Texas Secretary of State’s office says they are reviewing the lawsuit.