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Despite recent ruling, new Texas districts may still face DOJ clearance

Monday, March 29, 2010 by Kimberly Reeves

Texas is among the 16 states that will face additional pre-clearance of new legislative maps under Section 5 of the Voting Rights Act during the upcoming redistricting process.


That special scrutiny – intended to protect minority representation in states with a history of oppression and exclusion – was the topic of a panel Sunday morning at a national redistricting conference in Austin sponsored by the National Conference of State Legislatures. Speakers included Virginia attorney Gerry Hebert, who advised the Austin City Council during its most recent single-member district discussion.


Austin might have been an obvious place for a redistricting conference, as Texas has been at the center of a number of recent redistricting court cases, including one that broadened the ability of local jurisdictions to opt out of Section 5 compliance, Northwest Austin Municipal Utility District v. Holder. That decision, out last year, now allows a broader number of jurisdictions to opt out of the Section 5 provisions, which means that jurisdictions can avoid costly and time-consuming Department of Justice clearance review of all changes to maps, down to precinct line changes.


Hebert told lawmakers he thought the Austin MUD decision would bring a wave of new cases his way or, as he joked, “the windfall that would allow me to pay for my grandchildren’s college education.” Despite the ability of more jurisdictions to take advantage of bailout opportunity, few have done so, Hebert said, possibly because of misconceptions about the cost of such efforts.


“My rates are really not that high,” Hebert joked, noting that most cases, given the proper data, can be resolved for about $2,500 in legal fees and DOJ reviews.


To date, Hebert has presented the 65 jurisdictions that earned bailout status since 1982, every jurisdiction, in fact, minus the Northwest Austin MUD #1. Must jurisdictions do qualify for the bailout provision – no complaints in the last decade, a track record that includes expanding voting opportunities and sufficient minority representation in the voter registration process – but few jurisdictions have taken advantage of the option.


A bailout does not avoid culpability, Hebert said. Jurisdictions under a bailout must continue proper practices or be subject to voting rights challenges.


John Tanner, a law professor at Baylor University and recently employed by the Department of Justice, also offered his overview of pending redistricting issues, Section 5 and otherwise. He told the lawmakers:


  • Section 5 is focused on maintaining current minority representation in legislative bodies – a minority majority district might not always determine that. So-called influence districts, where the percentage of minorities is smaller than 50 percent but still significant, still are considered important under Section 5;

  • A majority minority district is not always one race if it can be shown that, for example, African-Americans and Hispanics vote together as a bloc for similar candidates. The issue is to provide an electable district for minorities;

  • Lowering the percentage of minorities across a series of districts, such as the case in Alabama two decades ago, can be viewed as being as egregious as dismantling one district. Dismantling one district, as demonstrated by LULAC v. Perry in South Texas, is not advised because it’s simply “inviting projects for yourself and spending money to no good purpose,” Tanner noted;

  • The census should not be confused with the electoral population. The courts recognize that the census population is not necessarily those who turn out to the polls, and that includes variations from college campuses to prisons to military bases;

  • Compactness of a voting district, as demonstrated in Texas case law and elsewhere, is not a concern of the court, and has not been important in court decisions;

  • Packing districts with a higher percentage of minority voters is not viewed well by the court, especially if minority candidates can be elected with a lower percentage. Packing simply dilutes minority influence in other districts; and

  • Barack Obama cannot be a litmus test for a district, or area’s, tolerance for black candidates. “That’s another one that won’t pass the smell test,” Tanner said.

“You need the legislature to do the hardest thing that can be done in a realistic way,” Tanner said. “They need to be honest and they need to be fair, and they probably won’t be, so we’ll all be in business in the years to come.”

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