Wednesday, October 26, 2011

DOJ: Texas Redistricting Maps Arbitrary

On Friday Sept. 23, 2011, the U.S. Department Justice (USDOJ) said that based on their preliminary investigation, a congressional redistricting map signed into law by Republican presidential candidate Rick Perry appears to have been "adopted, at least in part, for the purpose of diminishing the ability of citizens of the United States, on account of race, color, or membership in a language minority group, to elect their preferred candidates of choice to Congress."

USDOJ's Civil Rights Division specifically challenged the redistricting maps for Texas congressional Districts 23 and 27, which they say would not provide Hispanic citizens with the ability to elect candidates of their choice to the U.S. House of Representatives.

In papers filed with a special three-judge panel in Washington, D.C. on Tuesday Oct. 25, 2011, the Department of Justice and individual parties sharply criticized the standard the State of Texas wants the D.C. panel to use in evaluating arguments about ‘retrogression’ in the state’s redistricting maps.

There is “ample circumstantial evidence” that the congressional and state representative redistricting maps signed by Texas Gov. Rick Perry had not only the effect but the intent of limiting the voting power of Hispanic voters, Justice Department lawyers said in the court filing.

From Texas Redistricting by Michael Li

Calling the state’s proposed standard “arbitrary,” the Justice Department argued that “determining whether a minority group has the ‘ability to elect’ a candidate of choice under Section 5 is not as simple as looking at a discrete set of population figures. ‘The legal standard is not total population, voting age population, voting age citizen population or registration, but the ability to elect.’” [DOJ, p. 4]

Arguing that the state’s “analysis of ‘ability to elect’ in both the State House and Congressional plans consists only of wrote application of a population formula,” the DOJ accused the state of confusing ‘ability to elect’ districts under section 5 of the Voting Rights Act with ‘minority opportunity districts’ under section 2 and thus “conflating Section 5 with Section 2 of the Voting Rights Act, which the Supreme Court has repeatedly advised against.” [DOJ, p. 5] “Determining whether the ability to elect exists ‘requires a functional analysis of the electoral behavior in the particular jurisdiction or election district.’” [p. 6]

According to DOJ, the state’s proposed house map reduces the number of ability to elect districts from 50 to 45 or 46.

The DOJ argues that the state’s proposed congressional map also is retrogressive, especially in light of “an almost unprecedented increase in the number of seats in its congressional delegation - four - resulting from a State population increase fueled mostly by the increase in the State’s Hispanic population.” [DOJ, p. 21-22]

According to DOJ, “[u]nder the proposed plan, Hispanic voters will lose ground in their existing ability to elect candidates of choice … even though the number of Hispanic majority districts remains the same [at] seven,” pointing to what it says are problems in CD-23 and CD-27. [DOJ, p. 23-24]

The DOJ also disagreed strongly with the state on discriminatory intent arguing “there is substantial factual dispute concerning whether the proposed Congressional and State House plans were enacted with discriminatory purpose,” including numerous issues with the process by which the maps were drawn.

Intervenor groups echoed the DOJ in their briefs, calling the state’s retrogression analysis “simplistic” and accusing the state of improperly trying to shirk its burden of proof on discriminatory intent issues.

The state has until October 31 to file a reply. The D.C. panel holds oral argument on the state’s request for a judgment in its favor on November 2.

Here are the parties’ briefs:

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