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Justice Dept. files voting rights suit against Texas over new map


Attorney General Merrick Garland testifies at a Senate Judiciary Committee oversight hearing, on Capitol Hill in Washington, Oct. 27, 2021.

By Katie Benner, Nick Corasaniti and Reid J. Epstein


The Justice Department sued Texas earlier this week over the state’s plan to redraw its voting districts, saying it would essentially make ballots cast by Black and Latino voters count for less than those of others.


In announcing the suit, Attorney General Merrick Garland said the redistricting plan that the state’s Republican-led legislature approved in October violates Section 2 of the Voting Rights Act, which says voters cannot be denied equal access to the political process based on their race or ethnicity.


The suit was the second in a little over a month to be filed by the Justice Department challenging Texas over voting. The department sued the state in early November over a new voting law that it argued would disenfranchise Texans who do not speak English, people with disabilities, older voters and those who live outside the United States.


The suit filed Monday also puts other states on notice as they redraw their voting districts, a process that occurs once a decade. Seventeen states have already finalized congressional maps this year, with more expected to complete the process before the spring.


The Texas plan not only “denies Black and Latino voters the equal opportunity to participate in the election process,” some aspects of the plan were created “with discriminatory intent,” Associate Attorney General Vanita Gupta said at a news conference.


The lawsuit laid out several examples where minority districts were eliminated altogether or redrawn in such a way that minority voters in urban areas were newly counted in rural, predominantly white areas. In the case of voters in Dallas, those new districts could extend more than 100 miles from the city center.


The suit intensified a running battle between the Biden administration and Texas, a state that defied federal guidance on the use of masks to stop the spread of COVID-19 and that passed a near-total ban on abortion that the Justice Department, in another suit, has called unconstitutional.


Ken Paxton, the state’s attorney general, called the redistricting suit “absurd” and a “ploy” by the administration. “I am confident that our legislature’s redistricting decisions will be proven lawful, and this preposterous attempt to sway democracy will fail,” Paxton said on Twitter.


The lawsuit, even if it succeeds, is unlikely to change the enacted Texas maps before the midterm elections next November, when control of Congress is at stake. A decade ago, litigation over Republican-drawn districts in Pennsylvania, North Carolina and elsewhere took years before courts ordered new lines drawn. The Texas candidate filing deadline is next week and primary elections are set for March 1.


The federal lawsuit will face significant hurdles in court. Unlike in past decades, Texas did not have to submit its maps for prior clearance by the Justice Department under Section 5 of the Voting Rights Act, which the Supreme Court neutered in 2013. The Justice Department now has the burden of proving the Texas maps violate federal law, as opposed to Texas being required to demonstrate they are legal.


That Supreme Court decision also eliminated the ability to sue states under the Voting Rights Act in federal court in Washington, D.C. Instead, the lawsuit against Texas was filed in El Paso, meaning any appeal would go through the 5th Circuit, which is stacked with conservative judges.


“They have a major home-court advantage in Texas because you go to the 5th Circuit,” said Tom Perez, a former head of the Justice Department’s civil rights division and former chairman of the Democratic National Committee who is now running for governor of Maryland. “The oldest play in the far-right playbook, whether it’s voting rights, abortion rights, labor rights — go to court in Texas.”


The lawsuit follows a 2019 Supreme Court ruling that significantly weakened the legal grounds for challenging voter maps. In Rucho v. Common Cause, the court ruled that partisan gerrymandering — maps designed to favor a political party — could not be challenged in federal court (although racial gerrymandering remained unconstitutional).


The Justice Department does have an advantage from one element of the law. Although the lawsuit makes numerous claims that Texas lawmakers drew intentionally discriminatory maps, there is no requirement that the Justice Department prove intent to successfully challenge the Texas maps under the Voting Rights Act.


“The Voting Rights Act sets up vote dilution, and vote dilution does not have to prove intent,” said Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund.

The lawsuit over redistricting comes as President Joe Biden and congressional Democrats face pressure to challenge Republican state legislatures around the nation that have sought to curb voting access.


Even though the Justice Department has sued Georgia and Texas over laws limiting ballot access, and filed statements of support in lawsuits brought by private plaintiffs in Florida and Arizona about laws in those states, those new statutes could be in effect for multiple election cycles before the courts decide whether they are constitutional.


Garland said the Biden administration has only a limited ability to keep states from enacting discriminatory voting laws — even though the Justice Department has prioritized the issue and doubled its enforcement staff — because the 2013 Supreme Court decision ended the department’s authority to approve or deny voting laws and redistricting plans before they went into effect.


The Justice Department is asking the courts to force Texas to create and implement a new redistricting plan and to establish interim plans that remedy the components of its current redistricting plan that are deemed to be unlawful.


The department’s lawsuit is the third legal challenge to the newly drawn Texas voting maps. Private plaintiffs, including a group led by former Attorney General Eric Holder, have also filed lawsuits. Holder, who led the Justice Department during the Obama administration, is chair of the National Democratic Redistricting Committee, a voting rights advocacy group.


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