The Justice Department reversed its position in a closely watched voting rights case on Tuesday, telling a panel of federal judges Texas shouldn’t have to clear its voting changes with the federal government despite its history of intentionally discriminating against voters.
The filing came in a Texas gerrymandering lawsuit, Abbott v. Perez, and has big implications for the remaining power of the Voting Rights Act, the 1965 law to prevent discrimination against minorities. Several former Justice Department lawyers, some of whom worked on the case, said the reversal was alarming because the pattern of discrimination in Texas was so clear and the state is likely to do the same thing again without federal supervision.
The plaintiffs in the suit, and the Justice Department until Tuesday, said Texas’ pattern of discriminating against minority voters, both recently and historically, meant it should have to have any changes to its voting laws pre-cleared, or pre-approved, by the federal government.
“Generations of DOJ lawyers, including myself, have taken turns combating Texas’ many racially discriminatory voting policies. If Texas can’t meet this DOJ’s standards for warranting pre-clearance, I suspect no jurisdiction can,” said Sasha Samberg-Champion, a former senior attorney in the appellate section of the Justice Department’s civil rights division.
Requiring states to clear voting changes is considered the heart and the most powerful part of the Voting Rights Act because it prevents discriminatory voting policies before they go into effect. For decades, it blocked places with a history of discrimination from enacting restrictive policies that would suppress voters.
But in Shelby County v. Holder in 2013, the Supreme Court struck down a provision of the law the federal government used to require certain jurisdictions, including Texas, to clear their voting changes with the federal government. The decision allowed states to enact voting restrictions and leaving voting rights groups able to challenge them only after the fact.
The plaintiffs in the Texas redistricting suit are seeking to use a different provision in the law that says jurisdictions can be put under pre-clearance if they have a history of intentional discrimination. Only one jurisdiction, the city of Pasadena, Texas, has been put back under federal supervision using that provision following the 2013 decision. Placing the entire state of Texas under supervision would have been a hugely significant win for voting rights groups.
The Texas suit involves a challenge to legislative and congressional districts that were originally drawn by Texas lawmakers in 2011. That same year, a panel of judges threw out those maps, saying lawmakers had intentionally discriminated against black and Latino voters. Texas adopted a court-approved temporary fix for the 2012 elections and then made those the state’s permanent maps. A federal district court in Texas found that the 2013 plan was also discriminatory, but the Supreme Court last year ruled the plan was OK.
In its Tuesday filing, Justice Department lawyers said Texas shouldn’t be subject to pre-clearance because it had adopted new maps, therefore fixing the discrimination.
“Texas’s most recent redistricting was the enactment of the 2013 plans, which essentially mirrored this Court’s 2012 interim plans and, as the Supreme Court held, did not involve any vote dilution, intentional or otherwise,” lawyers wrote in the Tuesday filing.
Justin Levitt, a former deputy assistant attorney general in the Justice Department’s civil rights division who worked on the Texas case, said the Tuesday filing was “trash.”
He said Texas repeatedly, blatantly and intentionally discriminated against minority voters and refused to stop even when warned by the Supreme Court. That kind of discrimination, Levitt said, was precisely the kind of thing Congress wanted to prevent when it included pre-clearance provisions in the Voting Rights Act. Texas is likely to discriminate again during the next round of redistricting in 2021 and has little incentive not to unless it is under the supervision of the federal government. Texas, Levitt said, has shown an “addiction to racism” that it isn’t going to fix on its own.
Redistricting isn’t the only area where Texas discriminated against minorities. A federal judge found that the state’s voter ID law, passed in 2011, was intentionally discriminatory (an appeals court upheld a revised version of that law, even though a federal judge said the revision didn’t get rid of the discrimination). And the state now faces new allegations of voter intimidation after Attorney General Ken Paxton (R) tweeted misleading information and claimed there was voter fraud in the state.
“If we were talking about normal criminal law, we’d call Texas a recidivist. They have had more than three strikes,” Levitt said. “Texas didn’t fix this on their own, anything but. They were dragged into court kicking and screaming and told to fix it and they did the minimum necessary to make sure they could escape the court fixing it the next time.”
“If we were talking about normal criminal law, we’d call Texas a recidivist.
Justin Levitt, former DOJ official
Kelly Laco, a Justice Department spokeswoman, said Texans are protected against discrimination during the next round of redistricting.
“The State of Texas must comply with the Constitution, the Voting Rights Act, and other voting-related protections. The Department of Justice remains committed to enforcing these protections,” she said in a statement. “However, there is currently no reason to subject Texas to federal court oversight, a process that the Supreme Court has described as ‘extraordinary’ and limited to only ‘exceptional’ cases. Furthermore, decisions by both the Supreme Court and U.S. Court of Appeals for the Fifth Circuit prohibit such oversight.”
Bryan Sells, a former Justice Department career attorney who worked on the Texas redistricting case, said it was unsurprising but “disheartening” and “sad” to see the DOJ’s reversal in the case. Both Sells and Levitt noted the Tuesday filing was not signed by career attorneys in the Justice Department, an unusual move and a strong signal the career attorneys disapproved of the position. The brief was signed by John Gore, one of the top political appointees in the civil rights division.
“That’s a clear signal the position was dictated by the political appointees and that this is a political decision,” Sells said in an interview. “Voting ― it used to be under Republican and Democratic presidents sort of off-limits to that kind of political interference and it makes me sad every time I see it.”
It is not common for the Justice Department to switch sides in a case. However, under President Donald Trump, the Justice Department has switched sides in multiple high-profile cases involving voting rights. In 2017, it reversed its position in a case and the long-standing position of a federal statute to defend Ohio’s practice of aggressively removing voters from its rolls. It also reversed its position in a suit challenging Texas’ voter ID law ― which was also found to be intentionally discriminatory ― defending the law after initially supporting the challenge. Civil rights groups have accused Trump and the Justice Department of abandoning enforcement of voting rights laws.
“This is a really appalling brief for the civil rights division to file, and it’s unsurprising that career voting rights attorneys declined to sign it,” Samberg-Champion said.
“I am also disturbed by this brief’s description of pre-clearance itself, as an unwarranted burden on any jurisdiction rather than a necessity to combat pervasive discrimination,” he added. “This is a really demeaning way for the civil rights division to characterize the work that so many of its lawyers did for years, until [Shelby County v. Holder]. It is a very sad thing for this division alum to see.”
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