AUSTIN -- Texas again finds itself before several courts -- and holding a special legislative session -- because it keeps drawing boundary lines for congressional and legislative districts that discriminate against blacks and Hispanics.
Since President Lyndon Johnson passed the Voting Rights Act in 1965, his home state has had as much difficulty as any other complying with the law's requirement that minorities be given equal access to the political process.
"We're right up there with Mississippi, South Carolina and Georgia," said Cal Jillson, a political scientist at Southern Methodist University in Dallas.
Under Democrats and Republicans, the Legislature has tried to water down minority votes, and in both cases it has cost cities like El Paso, which is 82 percent Hispanic.
The state's latest attempt to redraw district boundaries is mired in a bewildering morass of political and legal fights -- some of which involve El Paso County districts. What the discrimination means to El Paso voters is that issues of particular importance to the Hispanic community -- such as making Medicaid available to the working poor and spending more on public education -- don't get their due in the Legislature, Jillson said.
Lawmakers have to redraw district maps once a decade to adjust for changes in population. Not surprisingly, the party in control seeks to draw the maps in such a way that its members are safe while members of the other party are vulnerable.
That's perfectly legal under the Voting Rights Act. But it's illegal for map drawers to dilute the power of minority groups even if the purpose is to seek partisan advantage.
The law goes back to a time when some minorities were terrorized from even registering to vote. Others faced literacy tests, poll taxes and other obstacles that were meant either to keep them from voting or to control how they voted if they did.
Congress and the courts have held that the principle of "one man, one vote" under the Voting Rights Act doesn't just mean clearing away obstacles to individual voting. It also prohibits techniques such as "cracking and packing" -- splitting up some areas with heavy minority populations into several districts so minorities have no electoral strength, and packing others into a single district so their influence is limited.
The Texas Legislature has been consistently unable to comply with those rules.
"In the last four decades, Texas has found itself in court every redistricting cycle, and each time it has lost," the U.S. District Court for the District of Columbia wrote in a scathing opinion in August.
That "losing streak," as the court called it, spans back to a time when Democrats were firmly in control.
"It was white Democrats who were trying to protect white Democratic incumbents," Jillson said.
The problems continued in 2003, just after Republicans won control of the Texas House for the first time since Reconstruction. U.S. House Majority Leader Tom DeLay, a former legislator, parked himself in the basement of the Capitol and led a rare, mid-decade redistricting process that, among other things, added six seats to the Republicans' 25-seat majority in Congress.
Those maps were challenged to the U.S. Supreme Court, which in 2006 ruled that Congressional District 23 -- which now includes much of the Lower Valley -- violated the Voting Rights Act and had to be redrawn.
In the 2011 session of the Legislature, Texas Republicans got another crack at redistricting using 2010 census data.
The dispute has involved at least three sets of maps, U.S. district courts in San Antonio and Washington, D.C. and the U.S. Supreme Court. Everyone is now waiting for the Supreme Court to rule on an Alabama case that might affect what happens in Texas, where the Legislature is in special session considering yet another round of redistricting.
Coming out of the 2010 elections, Republicans held big majorities in the Texas Legislature, and they drew maps that minority groups immediately said were discriminatory.
Senofria Thompson, D-Houston, has been in the House for 40 years -- the second-longest of anyone now serving. Last week, she said the 2011 maps sought to pack her district by putting 18,000 more residents -- most of them minorities -- in her district than in the average one.
Unlike congressional districts, which all have to have the same population, the Supreme Court has ruled that state legislative districts only have to be within 10 percent of each other, according to TX Redistricting http://txredistricting.org/post/51363961865/a-look-at-remaining-map-disputes-the-state-house-map, a blog by expert Michael Li.
The rule is intended to keep intact cities and counties, but Thompson said the overage in her district was intended to pack minorities in her district and make vulnerable black Democratic representatives in surrounding districts.
Minority-advocacy groups, including the Mexican-American Legislative Caucus, sued over the 2011 maps. They claim that similar "cracking and packing" techniques were used with Hispanic populations in San Antonio, Dallas and El Paso.
A three-judge panel in San Antonio agreed and redrew the maps in a way that made big changes, including to El Paso's House District 78.
Despite El Paso's high preponderance of Hispanic Democrats, District 78 has been closely divided. It was won by Democrat Joe Moody in 2008, and then Republican Dee Margo in 2010, and then Moody in 2012 when he ran in a court-drawn district.
Texas Attorney General Greg Abbott appealed the San Antonio court's first maps to the U.S. Supreme Court. During oral arguments in January 2012, District 78 and other features of the El Paso maps caught the attention of Justice Sonia Sotomayor.
She noted that District 78, as drawn by Texas Republicans, was oddly shaped in a way that seemed to divide neighborhoods more than was necessary. She said the map "created (an) antler-type district, a head with two unconnected antlers on top, nothing tying them together."
Representing Texas was former U.S. Solicitor General Paul Clement. He argued that the San Antonio court exceeded its authority by completely redrawing the maps instead of taking the Legislature's maps into account.
Sotomayor wasn't buying it.
"You're saying they should have given deference to an oddly shaped district that changed a prior benchmark that's been challenged as having been created specifically to minimize the Latino vote," she said. "All of the changes that relate to El Paso are very significant."
The high court ended up ordering the San Antonio court to redraw the maps, deferring to the Legislative maps where it could. A different District 78 emerged in which Moody was elected.
That second set of interim maps were the ones used in last year's delayed primary and general elections -- and they're the ones the Gov. Rick Perry called a special session last week to make permanent.
More serious problems
But another federal court, this one sitting in Washington, D.C., also had to review the 2011 maps that were drawn by the Texas Legislature.
Under Section 5 of the Voting Rights Act, states and communities with a history of voter discrimination have to get "preclearance" for any changes relating to voting. They include the locations of polling places and how legislative districts are drawn. The goal is to ensure that the impact of minority votes won't be diluted.
The U.S. Justice Department usually handles preclearance, but Attorney General Abbott, a Republican, took the case instead to the Washington, D.C., district court.
He has been accused of making the move for political reasons. Two of the panel's three judges were Republicans, said Matt Angle of the Lone Star Project, an advocacy group.
"They thought it was going to be an easier path," Angle said.
In its order last August, the court found that even though the maps had to allow for four new congressional seats, none was drawn as an "ability to elect" district. That meant minority groups would not have the ability to elect the candidate of their choice in any of the new districts.
That was a problem for the judges because 90 percent of the growth that allowed for the new seats consisted of minority Texans.
The judges said their job was not to fix racial disparities that already exist in the Texas delegation, but they had to prevent "retrogression" -- or backsliding -- under new maps. They said all three maps drawn by the 2011 Legislature clearly were retrogressive.
They went further and said that two -- the congressional map and the one for the state House -- also were intentionally discriminatory.
They cited some compelling evidence.
For example, the maps were drawn to cut out the district offices and key economic drivers for two black Texas members of Congress, Al Green and Sheila Jackson Lee of Houston. Eddie Bernice Johnson, a black congresswoman from Dallas, lost her district office, the arts district, the arena where the Mavericks play and her house.
Hispanic Congressman Charles A. Gonzalez of San Antonio lost his district office, the Alamo and the convention center named for his father, former U.S. Rep. Henry B. Gonzalez.
The losses sapped the officials' ability to stay in touch with their constituents and to develop their districts, said the Washington, D.C., judges.
"No such surgery was performed on the districts of Anglo incumbents," the judges wrote. "In fact, every Anglo member of Congress retained his or her district office. Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent's grandchildren."
The Washington, D.C,. court also placed considerable focus on Congressional District 23, which was then occupied by Republican Francisco "Quico" Canseco of San Antonio. It's now occupied by Pete Gallego a Democrat from Alpine.
In discussing the district, which sprawls from El Paso to San Antonio, the judges cited the "nudge" memos.
They were emails between Republican map drawers plotting to move into the district Hispanics with a poor history of turning out to the polls and to move Hispanics with a good voting history out. The idea was to make District 23 look as if it had the same composition, but would favor Republicans, the emails said.
Such a strategy would be "especially valuable in shoring up Canseco," one of the emails said.
The Washington, D.C., judges ruled, however, that the consequences ran beyond partisan advantage. The "nudge" strategy would have the effect of diluting minority voting power in a way that violated the Voting Rights Act, they wrote.
Under the second set of interim maps drawn by the San Antonio judges, much of the Lower Valley was added to District 23, arguably making the difference in Gallego's victory last November. Angle, of the Lone Star project, said that Canseco got only 27 percent of the Hispanic vote in the 2012 election.
Big decision near
In the wake of the Washington, D.C., court's ruling, Abbott again appealed to the U.S. Supreme Court and asked that the part of the Voting Rights Act that made the proceeding necessary --Section 5 -- be declared unconstitutional.
The appeal is on hold while the court considers another request to throw out Section 5.
In Shelby County, Ala., vs. Holder, lawyers for the county argued in February that Section 5 is unconstitutional. A decision could come any day, but court watchers tried to guess from the justices' questions in February how they will rule.
Amy Howe of the influential SCOTUSblog said that Chief Justice John Roberts and Justice Samuel Alito indicated they didn't think it was fair that Section 5 requires "covered" states -- such as Texas and Alabama -- to get preclearance for electoral changes when other places with possibly worse problems did not.
Section 5 applies to communities with a history of discrimination, and some justices seemed upset that it doesn't take into account improvements since the civil rights era. Despite their concerns, Congress reauthorized Section 5 almost unanimously in 2006.
Blogging just after oral arguments, Howe wrote that "it seemed almost certain that five (of the justices) would vote to put a halt to Section 5 as it currently operates."
But in an email, Howe said that's not the same thing as throwing it out altogether.
"The broader answer to the question of the effect of the court's decision in Shelby County on the redistricting cases will ultimately depend a lot on exactly what the Court says in its opinion," she said.
In San Antonio last week, the judges in the Texas lawsuit were wondering what, if any, effect changes to Section 5 would have on the Texas redistricting case. If the Supreme Court got rid of Section 5, they asked, could the San Antonio Court consider the findings by the Washington, D.C., court that the maps were intentionally discriminatory?
Predictably, lawyers for the state said they'd have to be disregarded, while lawyers for the plaintiffs said the court could still consider the findings.
The San Antonio judges wondered whether there would even be any point in continuing the lawsuit over the 2011 maps if the Legislature replaced them with the second set of court-drawn maps.
Texas Rep. Trey Martinez Fischer, D-San Antonio, is the head of the Mexican American Legislative Caucus. He said his group would sue again if the Legislature did so.
He and other Democrats are up in arms that -- on Abbott's advice -- Perry called the Legislature into session to consider only the interim maps, which were hastily drawn to prevent further delays in last year's primaries.
"I think he (Abbott) was trying to circumvent the legal process that's been ongoing," said Moody, a lawyer.
Asked about that and other issues regarding redistricting, Abbott's office referred to a letter the attorney general sent House Speaker Joe Straus, R-San Antonio, saying that ratifying the interim maps "will insulate the state's redistricting plans from further legal challenge."
Abbott's office didn't respond to further questions.
Republicans in the Texas House and Senate have gone beyond Perry's agenda and have said they will consider other proposals. Now they're holding field hearings in Dallas, Houston, San Antonio and Corpus Christi. The House committee might come to El Paso.
"The point is, we're listening to what the public is saying," House Redistricting Chairman Drew Darby, R-San Angelo, said last week. "We're trying to hear specifics about how districts do not meet constitutional muster."
Some cynics say that legislative Republicans will go through the motions of gathering opinions and then ram through the interim maps anyway -- pretty much guaranteeing further litigation.
But Darby and some influential Democrats seem open to a political solution. Such an agreement probably would involve House Republicans agreeing to redraw a certain number of districts as minority "ability" districts -- which, the Washington,D.C. court said, are almost the same thing in today's Texas as Democratic districts.
"My own view is that redistricting is a legislative function," Gallego, whose District 23 congressional race last year was one of the country's most expensive, said Friday. "The courts for me have always been a measure of last resort."
Because he's a 22-year veteran of the Texas Legislature, Gallego's words carry some weight in the Capitol.
So, too, do those of Thompson, who was recently celebrated on the floor by Republican colleagues for not taking any nonsense from anybody.
"I think there's room for reasonable minds to work this out and not force the courts to do it for us," she said.
Marty Schladen may be reached at mschladen@...; 512-479-6606.