//  7/25/19  //  In-Depth Analysis

In a surprise decision, the three-judge district court overseeing the Texas redistricting litigation unanimously held that the State of Texas should not be “bailed-in” under Section 3(c) of the Voting Rights Act for its unconstitutional conduct during the 2011 redistricting cycle. The district court’s refusal to impose preclearance means that the 2020 redistricting cycle will be the first time since the early 1970s that Texas will be free to draw statewide redistricting plans without federal supervision. Given Texas’s recent and pervasive history of racial discrimination in voting, that is a very worrisome development. The district court’s decision is thus a huge loss for minority voters and is particularly shocking given that Texas is a poster child for bail-in.

To recap this near-decade-long saga, the district court had previously found that Texas intentionally packed and cracked minority voters when it enacted congressional and state House plans in 2011. The district court also found Shaw violations. Those plans, however, never went into effect due to Section 5’s preclearance regime and this litigation. Texas then enacted new maps in 2013. In Abbott v. Perez, the Supreme Court concluded that the 2013 plans were not intentionally discriminatory but ordered the modification of one state House district as a Shaw violation. Plaintiffs subsequently requested bail-in based on the intentional racial vote-dilution claims from 2011 as well as the Shaw violations from the 2011 and 2013 plans. The district court concluded that Texas was eligible for bail-in but that such relief was not warranted.

At the outset, the district court rejected Texas’s threshold arguments against bail-in. Responding to Texas’s “no harm, no foul” argument, the district court correctly explained that “[c]ourts need not permit elections to proceed under an unconstitutional and discriminatory plan to award bail-in relief.” In a similar vein, the district court reasoned that Veasey v. Abbott—where the Fifth Circuit held that Texas’s enactment of a less-stringent voter ID law precluded bail-in relief—did not control given the cases’ different procedural postures.

The district court then turned to what constitutional violations can trigger Section 3(c) relief. Perhaps most significantly, the district court rejected plaintiffs’ argument that Shaw violations count for bail-in purposes. According to the district court, Shaw violations do not require a finding of invidious intent and therefore do not fall within the category of constitutional violations that Section 3(c) was intended to encompass—a point underscored by the fact that Shaw claims were first recognized decades after Section 3(c)’s enactment. And agreeing with a South Dakota decision, the district court found that malapportionment claims do not qualify for bail-in because they do not concern racial discrimination. In addition, the district court reasoned that previous preclearance objections and constitutional violations by Texas’s political subdivisions provided useful context but did not themselves necessitate bail-in. Thus, the district court held that only the intentional racial vote-dilution claims involving the 2011 plans qualified under Section 3(c). As I explained and predicted after the parties briefed these issues, this approach is the most reasonable and prudent interpretation of Section 3(c).

Although the district court’s reasoning as to what constitutional violations may trigger bail-in was largely correct, its balancing of the equities is simply puzzling—and perhaps reveals a pragmatic decision to avoid Supreme Court scrutiny. On the one hand, the district court fretted about the constitutionality of preclearance after Northwest Austinand Shelby County, even though those decisions expressly reserved that question. The district court also invoked the double whammy of Abbott and Veasey as persuasive precedent that bail-in relief based on the 2011 maps would be improper in light of the 2013 plans. But on the other hand, the district court made clear that it was concerned about the likelihood that Texas would be a repeat offender in the 2020 redistricting cycle, pointing to Texas’s problematic and recent history of abridging the right to vote based on race. The district court further stated that future racial discrimination in voting was more likely given the “high levels of racially polarized voting across Texas” and given that “minority population levels are markedly increasing.” However, the district court’s doctrinal concerns about the constitutionality of preclearance and the enactment of the 2013 plans ultimately prevailed. And like the Fourth Circuit in the North Carolina voter-suppression case, the district court may have strategically declined to impose bail-in in such a high-profile case.

The district court’s decision is almost certainly the anti-climactic conclusion to this litigation. A Lone Star bail-in was always going to be a tough sell at the Roberts Court, and seeking reversal of this adverse decision would be foolhardy. No appellate court has ever considered the standard of review for a bail-in, but given its discretionary nature, the trial court’s decision is likely entitled to substantial deference. And given the “second enactment” wrinkle—namely, the 2013 plans—this case was never the ideal vehicle for testing Section 3(c). The enormous stakes of bailing-in Texas would assuredly not cut in plaintiffs’ favor either.

So what comes next for bail-in? I’ll be writing more on the post-Shelby County bail-in cases in the future, but for present purposes, it suffices to say that the Texas redistricting litigation was the last of the first wave of these cases. These decisions have set a high bar for pending bail-in cases—such as the one against Georgia for its voter-suppression tactics during the 2018 election—and those brought after the 2020 redistricting cycle. But it is important to keep in mind that these decisions have all been highly fact-specific and have not created significantly damaging precedent. And the prospect of Section 3(c) relief has encouraged plaintiffs to focus on intent claims—which proved wise in the North Carolina case—and kept claims live that might have otherwise been declared moot due to intervening legal changes. That said, the difficulty of obtaining bail-in has made it increasingly apparent that Congress should revise Section 3(c) to authorize bail-in based on a finding of discriminatory effect and to mandate preclearance in certain circumstances, such as a constitutional or statutory violation involving a statewide redistricting plan.


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Communications Infrastructure as Public Utility

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This week on Versus Trump, Jason and Charlie are back from a hiatus to discuss the President's lawsuit against New York State and the House Ways and Means Committee, both of whom—he says—may be conspiring to release his New York State tax returns. Listen now!

Charlie Gerstein

Civil Rights Corps