11/08/2011 04:35 pm ET | Updated Jul 24, 2012

Federal Court Rejects Texas Redistricting Plans

Texas Republicans had a strategy to circumvent the Obama Department of Justice to implement their partisan gerrymanders for Congress and the state legislature.

They had a strategy that turns out to have backfired badly.

As required by the Voting Rights Act, states such as Texas that are covered under Section 5 of the Act must demonstrate that their redistricting plans do not have a retrogressive effect on minority representation. These states must have the Department of Justice or the District Court of DC render a judgment. If the judgment is in the positive, the state can proceed with holding elections under the newly adopted districts. If the judgment is in the negative, then the redistricting plans cannot take effect.

Earlier this year, Texas Republicans passed heavily partisan Republican gerrymanders for Congress and the state legislature. (Full disclosure: I served as an expert witness for the Democratic Party of Texas on partisan gerrymandering claims in a case sitting before a San Antonio federal court three-judge panel).

Former Bush Department of Justice attorneys argued that the Obama Department of Justice could not be trusted with the decision. As J. Christian Adam writes,

Sources also tell me every statewide redistricting submission for Congress, state house, and state senate will be stuck in a red file automatically by order of the Obama political appointees. That means redistricting plans in states like Florida, South Carolina, New York, California, Arizona, Georgia, South Dakota, and others will all suffer politicized scrutiny. If this isn't enough reason for states to bypass the DOJ entirely and submit plans directly to the federal court for approval, then nothing is.

Weighing this advice, Texas Republicans -- and Republicans in other states -- decided to take a much less frequently traveled route by asking a three-judge panel from District Court of DC for a ruling. In these proceedings, the Department of Justice is the defendant. Traditionally, the District Court of DC allows the Department of Justice to do a retrogression analysis and follows their advice. The Department of Justice concluded that the Congressional and state House of Representatives plans had a retrogressive effect on Latino representation, but did not find fault with the Senate plan.

Texas Republicans hoped that the three-judge panel from the District Court of DC would ignore the Department of Justice, weigh favorably the evidence provided by the state, and give the green light to the two (of three) redistricting plans the Department of Justice objected to. What they did not consider was that a number of other groups -- including prominent voting rights organizations -- would also submit testimony before the federal court. The court weighed all the evidence and ruled all three redistricting plans negatively affected minority representation.

Having carefully considered the entire record and the parties' arguments, the Court finds and concludes that the State of Texas used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice and that there are material issues of fact in dispute that prevent this Court from entering declaratory judgment that the three redistricting plans meet the requirements of Section 5 of the Voting Rights Act. See 42 U.S.C. 1973c.

Obviously, the former Bush Department of Justice lawyers gave bad advice in the high stakes game of redistricting. The Department of Justice gave Republicans a more favorable ruling than the District Court of DC. If Texas Republicans had ignored the advice, at least the Senate plan would have proceeded. Every Texas Republican state Senator should be infuriated at the bill of goods they were sold.

Where do we go from here?

Usually, the state government gets another bite at the apple to rectify any deficiencies. However, with a very compressed schedule before candidate primary filing deadlines -- also a consequence of entering the slow moving federal court system -- there may not be enough time for the state to act and the new plans to be checked for voting rights violations.

Concurrently, a three-judge federal court in San Antonio is weighing federal claims against the same redistricting plans. Federal courts do not have to have their plans checked for voting rights violations, so the San Antonio court has a little more time to act. The most likely outcome is then that they will hire a special master to draw redistricting plans for the Congress and state legislature to be used for the 2012 elections. While I do not expect the court to draw a Democratic gerrymander, I suspect that the redistricting plan will not be as much as a partisan gerrymander as the plans passed by the Texas government.

How about the big picture? With Ohio Democrats refusing to compromise on a referendum on the Republican map, now federal courts in two important states are likely going to draw plans where Republicans controlled redistricting. Congressional Democrats have to be increasingly feeling better about their chances of taking the House of Representatives despite the historic success of Republicans at taking control of key state governments in 2010. But do not mistake me, Democrats are still likely going to be at a disadvantage due to redistricting, just not as bad of a one as they might have feared.