State Republican lawmakers unveiled their proposed maps redrawing Texas’s congressional boundaries this week.
This is Texas’ first redistricting cycle in nearly half a century to take place without federal oversight, the result of a landmark Supreme Court decision from 2013, Shelby County v. Holder, a decision that effectively gutted the preclearance requirement of the 1965 Voting Rights Act.
In March 1965, President Lyndon B. Johnson addressed a joint session of Congress, in the wake of the “Bloody Sunday” march for voting rights in Selma, Alabama. Johnson called for members to pass the Voting Rights Act.
“There is no constitutional issue here,” Johnson said. “The command of the Constitution is plain. There is no moral issue. It is wrong — deadly wrong — to deny any of your fellow Americans the right to vote in this country.”
The teeth of the Voting Rights Act came in the provision labeled Section 5, which required some Southern states with a history of discrimination to preclear redistricting plans before they went into effect.
While Texas had a long history of discriminating against Black and Hispanic residents at the polls, it did not fall under Section 5 when the Voting Rights Act initially passed. Rather, it was added to the list of states so covered when provisions of the act were extended in the 1970s.
“States with a history of discriminating against minority voters had to get all election law changes, including redistricting plans pre-approved by the federal government, either by a three-judge panel in Washington or by the U.S. Department of Justice,” said Michael Li, senior counsel for NYU School of Law’s Brennan Center for Justice. “Until they got those election laws and redistricting plans approved, they couldn’t use them.”
States like Texas that fell under the preclearance requirement had the option of challenging such rulings in court. But under Section 5, the burden of proof in such cases fell on the states to show that the changes they made would not discriminate against minorities.
That acted as a moderating influence on state lawmakers, according to Charles “Rocky” Rhodes, a law professor at South Texas College of Law Houston.
“If Texas legislators got too aggressive with respect to redistricting, in a way that might violate one of the provisions of the Voting Rights Act, then they weren’t going to be able to use their maps,” Rhodes said.
But the balance of the courts shifted over time. In 2010, with another round of redistricting on the horizon, Shelby County, Alabama sued the Obama administration, asking the courts to declare Section 5 of the Voting Rights Act unconstitutional.
Three years later, the U.S. Supreme Court ruled 5-4 in Shelby County’s favor, holding that conditions had changed since the 1960s and that portions of the Voting Rights Act were no longer valid.
Specifically, it struck down Section 4(b), the coverage formula on which Section 5 depended. Section 5 itself was left intact, but inoperative until Congress enacted a new coverage formula.
The effect of the Supreme Court’s decision was to shift the burden of proof from states like Texas to plaintiffs.
“You can still sue a state or city or county for discriminatory districting, but only after the plan goes into effect, and you must show that the effect of the plan is to dilute the representation of minority voters,” said Bob Stein, a political scientist and an expert on redistricting at Rice University. “So that is a big change.”
There are still portions of the Voting Rights Act that remain in effect. So too does the Equal Protection Clause of the Fourteenth Amendment. That means states can still be put back under preclearance if they’re found to discriminate against voters in mapmaking on the basis of race or ethnicity.
But some political scientists say that provides too much wiggle room: while intentional discrimination is illegal, drawing partisan maps that favor one party over another is still fair game.
It’s now up to plaintiffs to prove states like Texas are discriminating on the basis of race or ethnicity rather than partisanship.
“That litigation is complicated,” said the Brennan Center’s Michael Li. “It’s expensive. It’s time consuming. It oftentimes can drag out for years.”
Those plaintiffs can still get help from a friendly administration in the White House.
“The Department of Justice under Attorney General Merrick Garland has strongly signaled that they are going to be watching the redistricting process closely, and we would expect them to perhaps sue if things get really aggressive,” Li said. “They’ve beefed up the number of lawyers they have working on redistricting specifically for this purpose.”
But post-Shelby, the tools that the Justice Department has at its disposal are more limited. Democrats have been trying to address the problem with legislation such as the John R. Lewis Voting Rights Advancement Act, which would strengthen the Voting Rights Act, and the Freedom to Vote Act, which would create a statutory ban on partisan gerrymandering.
Both bills remain stalled in the U.S. Senate. Unless that changes, the maps Texas lawmakers draw are likely to stand for the time being.
“Those maps can continue to be used in election after election after election, even though they will likely be struck down at the end of the day,” Li said. “That will lock minority communities out of power for potentially much of the decade.”