Alex Constantine - July 19, 2014
One analyst says the case could turn Texas into a “purple state” by shifting power away from predominantly white conservatives and giving left-leaning voters more of a say.
Newly released emails between members of the Texas Republican Party from November 2010 confirm what black and Latino voters in Texas have argued for decades: Changes to political districts in the state are done in a strategic and discriminatory manner to ensure that the votes cast by minority groups — typically for Democratic officials — would be outweighed by Anglo-cast votes for Republican candidates.
Manipulating political boundaries in order to favor one party, or gerrymandering, may be a legal political strategy that both Democrats and Republicans have used, but redistricting is not legal if the voting rights of groups of certain groups of people are intentionally hindered.
In other words, it would be legal for Texas to lessen the influence of the Latino and black vote if it happens incidentally as part of efforts to ensure that Republicans maintain control of the state. But redistricting cannot be done in order to dilute the strength of the minority vote, which is what Latino and black groups allege has occurred in Texas.
On June 17, 2011, individual voters in the state of Texas, together with organizations representing blacks and Latinos, filed a lawsuit against the state of Texas on behalf of more than 9 million Latinos in the state. Filed in a federal district court in San Antonio, those filing the suit hoped that the courts would fix the “horrific attack on democracy and fair play,” said Lydia Camarillo, vice president of the Southwest Voter Registration Education Project.
“Texas was forced in 2001 and 2006 to redraw statewide redistricting plans because of its failure to comply with the federal Voting Rights Act,” said Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, or MALDEF, explaining that this is why “[w]e have turned to the courts again to make sure Texas follows the law in the current redistricting cycle.”
Henry Flores, a political science research professor at St. Mary’s University who has been involved in representing the minority voters, says that Texas Republicans have been drawing districts to ensure that minority voters are unable to elect a candidate of their choice. For example, in 2011, Republicans tried to divide the highly Latino populated south side of San Antonio into three different districts in order to weaken the influence of the Latino vote.
Discrimination at the polls
Last June, in Shelby County v. Holder, the U.S. Supreme Court ruled unconstitutional the provision in the Voting Rights Act that required federal officials to review proposed redistricting maps for all states in order to ensure the maps were not drawn with the intent to discriminate against various groups — meaning states no longer had to submit plans to the federal government. Because of this ruling, many thought this would be an open and close case for the state of Texas.
Essentially, the ruling meant that Texas and the 14 other — predominantly Southern — states with a history of discriminating against minority voters, no longer needed to obtain federal approval before changing the way elections are held, including creating new political districts.
However, since Section 2 of the Voting Rights Act, which prohibits discrimination in voting based on race or language minority status, was left intact, unaffected by the Supreme Court’s 2013 decision, along with other provisions in the Voting Rights Act that prohibit voter discrimination, the plaintiffs have a chance to win.
While it may have seemed like the odds were stacked against the minority voters, the new emails are being hailed as the “smoking gun” that proves intentional discrimination did occur with the 2011 and 2013 redistricting maps in Texas, giving black and Latino voters in Texas the edge they needed in this case.
According to a July 14, 2014, report in Salon, on Nov. 17, 2010, Eric Opiela, a Republican rancher who served as campaign adviser to then-Speaker of the Texas House Joe Straus and who is currently a candidate for Texas’ agriculture commissioner, sent an email to Gerard Interiano, who was working as an associate general counsel.
In the email, Opiela allegedly wrote that he was going to become the man who spoke “on behalf of the Republican Congressmen from Texas,” as he had been tasked with leading the efforts to redraw the state’s political districts in the weeks prior to sending the email.
While it’s not unusual for lawmakers or their teams to ask for help when taking on such a large project, what the minority voting-rights plaintiffs found concerning was that Opiela asked Interiano for demographic information about Hispanic voters in Texas, as well as their voting patterns.
In the Nov. 17, 2010, email, Opiela allegedly wrote, “These metrics would be useful to identify the ‘nudge factor’ by which one can analyze which census blocks, when added to a particular district [they] help pull the district’s Total Hispanic pop … to majority status, but leave the Spanish surname RV [registered voters] and TO [turnout] the lowest.”
Interiano responded two days later, allegedly saying, “I will gladly help with this Eric but you’re going to have to explain to me in layman’s terms.”
Opiela responded to Interiano, allegedly explaining that his “Optimal Hispanic Republican Voting Strength” strategy, or “OHRVS,” would be “a measure of how Hispanic, and[,] at the same time[,] Republican we can make a particular census block.”
During a deposition hearing on May 15, 2014, MALDEF’s Perales posed questions about the redistricting to Clare Dyer, who helped gather the demographic information on Texan voters for Interiano as part of her job as a mapping and redistricting researcher for the Texas Legislative Council, a state agency, Dyer reportedly admitted that it appeared Opiela was intentionally discriminating against minority voters.
Dyer said she took Opiela’s emails to mean that “[H]e’s trying to shore up — well, he says that — shore up districts so he can get — have them appear to be high Hispanic, but low Spanish surname registered voters. … You could give the appearance of having a Hispanic majority district, but it wouldn’t have the capability to elect — for the Hispanics in the district — to elect the person of their choice.”
It was the testimony of people like Dyer, combined with the emails themselves, that prompted David R. Richards, who represented minority voters in 2012’s Perez v. Perry — a case that resulted in federal judges drawing a new more Democrat-friendly map after voters contested the 2011 maps approved by state Republicans and approved by Gov. Rick Perry — to agree that these emails are the smoking gun the plaintiffs needed.
“You look like you preserve the vitality of a Hispanic district because of the raw numbers but the reality is you have — because of substituting out the high turnout with low turnout — hollowed out the core of the district and weakened the Democratic component of the district,” said Richards, who is also the ex-husband of the late former Democratic Governor of Texas Ann Richards.
In August 2013, Attorney General Eric Holder announced that the Department of Justice would help represent the plaintiffs in their lawsuit against the state of Texas, the Texas secretary of state and the director of the Texas Department of Public Safety, after the Supreme Court’s ruling in Shelby County v. Holder essentially reversed the federal court’s previous ruling in 2012 that Texas was unable to prove that its 2011 redistricting plans and voter identification law were not discriminatory.
In a statement, the DOJ explained that the Texas redistricting maps and voter ID law, known as thestrictest in the nation, were not only violations of Section 2 of the Voting Rights Act, but were also in violation of the 14th and 15th Amendments of the U.S. Constitution, which essentially guarantees American citizens the right and ability to vote.
“We will not allow the Supreme Court’s recent decision to be interpreted as open season for states to pursue measures that suppress voting rights,” Holder said. “The Department will take action against jurisdictions that attempt to hinder access to the ballot box, no matter where it occurs.
“We will keep fighting aggressively to prevent voter disenfranchisement. We are determined to use all available authorities, including remaining sections of the Voting Rights Act, to guard against discrimination and, where appropriate, to ask federal courts to require preclearance of new voting changes.”
Naturally, Gov. Perry was not pleased that the power of the federal government was now involved in a lawsuit against his state and himself in his professional capacity as governor of Texas. He told The New York Times that the Justice Department’s involvement was a violation of the 10th Amendment, which grants states the ability to create their own laws under some circumstances.
“The filing of endless litigation in an effort to obstruct the will of the people of Texas is what we have come to expect from Attorney General Eric Holder and President Obama,” Perry said. “We will continue to defend the integrity of our elections against this administration’s blatant disregard for the 10th Amendment.”
Evidence of discrimination
Michael Li serves as counsel for the Brennan Center’s Democracy Program, part of the Brennan Center for Justice at New York University’s School of Law, and is involved in issues related to redistricting, voting rights and elections. In a recent blog post for the Brennan Center, Li described the issue and agreed that the redistricting maps were intentionally discriminatory against black and Latino voters.
During a discussion on Texas Public Radio on Monday, Li expanded on his blog post, explaining that between 2000 and 2010, the population in Texas increased by 4.3 million people. Ninety percent of the new Texans were non-Anglos, and 7 out of 10 were Latino. Yet Li says that electorally, minorities are still struggling to have their voices heard.
“It is remarkable how careful and strategic redistrictors can be,” Li said, when they swap out the number of high-voters with low-voters to make it appear as if there are actually more Latino voters in a district, but because the additional voters are those people who are less likely to vote, the minority voters are put at a disadvantage. This, he explained, is illegal.
The first part of the trial is currently underway and is expected to last through July 19. There are at least two other phases of the trial that will occur throughout the rest of the year, as the three-person federal panel presiding over this trial decided that due to the complexity of the case, it needed to be broken up.
The second part of the case is expected to begin Aug. 11 and run through Aug. 15 or 16. The third phase has not been scheduled yet, and a fourth phase may be necessary if the court decides it would like more information.
Regardless of who the federal court sides with in Texas, Li said he expects this case will ultimately be decided by the Supreme Court, as the loser will likely file an appeal. Because it’s not clear when the panel will make a ruling on the case, and since the loser will likely file an appeal, Li forecast that the 2014 election will not be affected by the case, but it will have an impact on the 2016 election.
Like most cases that come out of Texas, Li said, this is very important because it not only tests the legal power of a little-known provision in the Voting Rights Act, but would essentially shift power away from predominantly white conservatives in Texas and give left-leaning voters more of a say, which could turn Texas into a “purple” state.
Remembering the democratic process
President Lyndon Johnson signed the Voting Rights Act of 1965 into law in order to preserve what Johnson called “the dignity of man, and the decency of democracy.” The unprecedented law was seen as a victory of millions of Americans who, as Attorney General Holder pointed out in a speech last year, braved “dogs and fire hoses, billy clubs and baseball bats, bullets and bombs — to secure those rights which were theirs as Americans.
“This law empowered the U.S. Department of Justice to fight unjust attempts to abridge voting rights and restrict access to the franchise. And, for nearly five decades, it provided robust, enforceable safeguards that helped protect the right of every American to cast a ballot — unencumbered by discriminatory rules, regulations, and procedures that, intentionally or not, discourage and disenfranchise.”
But since the conservative-majority Supreme Court ruled the way it did last year, many Republican-controlled states have ramped up their attempts to impose new limits on voting — largely in the form of voter ID laws. Republicans often argue that the law is not a form of discrimination, but rather a necessary provision that will help combat voter fraud.
But the forms of ID accepted are often those that minority voters are least likely to have. For example, in Texas, gun licenses would be listed as an acceptable form of identification, but a student ID would not.
Other states that the federal government has reportedly been monitoring include Florida and North Carolina. If the DOJ is successful in the Texas case, it may decide to take on voting laws it finds concerning in those states as well.