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Supreme Court's Texas gerrymandering decision could set dangerous precedent on discrimination

Abbott v. Perez will likely demonstrate the court’s current thinking on issues related to the voting rights of racial minorities nationwide.
by Jessica Levinson /
Image:
At issue in Abbott v. Perez is whether Republican lawmakers drew state and federal district lines to purposefully weaken the voting power of African Americans and Latinos.Tom Williams / AP file
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On Tuesday, April 24, the Supreme Court heard arguments in a case that asks it to determine Texas lawmakers drew legislative district lines that are racially discriminatory. Those challenging the district lines contend that Texas lawmakers purposefully diluted the voting power of African Americans and Latinos.

This Supreme Court term is all about gerrymandering, both partisan and now racial. But Abbott v. Perez is the only race-related gerrymandering case that it will hear this term. The case could help determine the political makeup of the Texas’ federal and state lawmakers. And it is the state lawmakers who will draw the district lines after the 2020 census, which could in turn determine the balance of power in Texas for the next decade. The case could also demonstrate the Supreme Court’s current thinking on issues related to the voting rights of racial minorities nationwide.

Abbott v. Perez is the only race-related gerrymandering case that the Supreme Court will hear this term. The case could also demonstrate the Supreme Court’s current thinking on issues related to the voting rights of racial minorities.

At issue in Abbott v. Perez is whether Republican lawmakers drew state and federal district lines to purposefully weaken the voting power of African Americans and Latinos. Two lower courts have said that these lines do in fact discriminate against racial minorities. Essentially, those challenging the lines contend that the voting power of African Americans and Latinos was so diluted by the district lines that they were preventing from having a fair opportunity to elect their favored candidates.

The case involves claims that Texas’s district lines violate both the U.S. Constitution and the Voting Rights Act of 1965. The suit centers on district lines drawn back in 2011 and others adopted in 2013 in an alleged attempt to remedy the problematic 2011 lines. In other words, this case has followed a long and winding road to the Supreme Court.

The decision to draw new lines was tied to the 2010 census. These districts had to account for the four million new residents in Texas reflected in the census, the vast majority of whom are racial minorities. But the 2011 district lines never went into effect as a court found that they infringed on the voting rights of minorities in Texas. And so district court in Texas drew new, temporary lines for the 2012 elections. In 2013, with only a few small revisions, Texas lawmakers adopted those court-ordered district lines — originally intended to be temporary — as their permanent district lines.

There is a great deal at stake here. A ruling against Texas would serve as a rebuke to state lawmakers — and any other lawmakers nationwide seeking to do something similar.

There is a great deal at stake here. A ruling against Texas would serve as a rebuke to state lawmakers — and any other lawmakers nationwide seeking to do something similar. If the court further finds that Texas lawmakers intentionally discriminated against racial minorities, then under the Voting Rights Act, Texas would be subject to something called “preclearance.” This means a federal court or the Department of Justice would review any changes that Texas makes to its election laws until it is able to prove it has remedied its racially discriminatory behavior.

Reading the tea leaves of this case provides little good news those challenging the lines, however. In September 2017, in a five-to-four decision, the conservative majority of the Supreme Court halted a lower court decision ordering Texas lawmakers to draw new district lines. Thus the Supreme Court has allowed the current lines, which two courts have said are illegal, to stay in place. The four liberal justices dissented from that decision. They likely will dissent again when the court issues its final decision in this case in June, but without a defector the result will be the same.

As is the case with so many so-called blockbuster Supreme Court cases, there is a way for the court to dispose of this case without actually making much of a decision.

As is the case with so many so-called blockbuster Supreme Court cases, there is a way for the court to dispose of this case without actually making much of a decision. Essentially, the court could say that because a lower court did not issue a final injunction, the case was inappropriately rushed to the Supreme Court. A federal law says that the Supreme Court can hear appeals from district courts that issue injunctions. Here, the district court in Texas didn’t actually issue an injunction; instead it declared that the 2013 maps were invalid and essentially asked the state how it planned to remedy that problem. Instead of responding to the district court, Texas appealed directly to the Supreme Court.

Texas argues that even though the district court did not formally issue in injunction, the Supreme Court still has the power to hear this case because the lower court issued a ruling declaring the districts to be invalid, which is functionally similar to an injunction. Indeed, this is the issue that consumed much of the oral arguments on Tuesday. Justice Stephen Breyer asked whether the court might be flooded with other cases if litigants could appeal cases regardless of whether an injunction was first issued.

As most every lawmaker is aware, African Americans and Latinos tend to vote for Democrats more than they do for Republicans. And hence skin color may be little more than a proxy for political predilections.

The curious thing about this particular issue is that the justices knew it was a problem before at least four of them voted to hear this case.

This case is, of course, about more than the voting power of minorities. It is about the political power of Democrats and Republicans. As most every lawmaker is aware, African Americans and Latinos tend to vote for Democrats more than they do for Republicans. And hence skin color may be little more than a proxy for political predilections.

While predicting Supreme Court decisions is often a fool’s errand, Texas’ chances are looking good. If a majority of the members of the court pushed pause on the Texas lower court’s decision to force lawmakers to draw new lines, it’s easy to see why they would be unlikely to now strike Texas’ district lines down. And if Texas does prevail, voters will go to the polls in 2018 with the knowledge that lawmakers are both able and willing to use the levers of power to protect themselves — and not their constituents.

Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, and is the president of the Los Angeles Ethics Commission.

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