On Wednesday, a three-judge federal panel in San Antonio ruled against civil rights groups that wanted federal oversight over Texas’ political redistricting efforts. Texas has been subjected to federal preclearance before because of the state’s history of voter suppression.
Rick Hasen, professor of law and political science at the University of California Irvine, says the panel did find that Texas has a record of intentional racial discrimination when it comes to voting, but that the evidence was not enough to require preclearance.
“[Racial discrimination is] a necessary condition but it’s not sufficient,” Hasen says. “The courts have a lot of discretion.”
He says the panel used the U.S. Supreme Court decision in 2018, Abbott v. Perez, as precedent.
“The Court said in 2013, when the [Texas] Legislature redrew the lines after another court required it to do so, it kind of cleansed itself of the earlier discrimination,” Hasen says.
Essentially, the federal panel used the Supreme Court’s decision as evidence that redistricting practices have gotten better in Texas, and that it would be too great a burden to require preclearance today. Plus, he says the panel argued that preclearance is used only rarely.
“It puts a lot of costs on the states in terms of federalism, so we’re gonna hold back,” Hasen says, describing the panel’s decision.
The panel also relied on legal precedent from 2012, Hasen says, which removed preclearance as an option for states with long histories of voter discrimination, but without recent evidence of such practices.
Another factor in the panel’s decision, Hasen says, is that had it decided to require preclearance, the case would have gone straight to the Supreme Court, where the decision would likely be reversed.
“I think rather than create uncertainty, and rather than issue a ruling that will likely be reversed, the judges simply threw in the towel,” Hasen says.
He says the plaintiffs likely won’t appeal the case. That’s partly because he says the plaintiffs wouldn’t have much success at the Supreme Court. (The case would not go through appeals court.)`
When it comes to voting rights, redistricting and discrimination, recent Supreme Court decisions suggest that these issues will likely be resolved either in lower courts or through the political system, Hasen says.
“In a place like Texas, where race and party are so highly correlated … that for courts trying to figure out whether race or party predominates is a very difficult, I would say even impossible, task, but that’s the task that the Supreme Court has put in front of the courts,” Hasen says.
Written by Caroline Covington.