Texas Republicans have had a problem for decades as the state grows less white and more diverse. Since increased diversity tends to lead to more Democratic political power, Republicans have a vested interest in drawing political districts that disenfranchise minorities and focus power in the remaining white populations. A quiet, but deadly attack to cement the process at the federal level is happening right now.
For decades, there has been an almost comfortable rhythm to the redistricting process. Texas Republicans do their best to keep the number of Black and Hispanic majority districts to a minimum, citizens and civil rights groups sue them under the Voting Rights Act, and then some of the lines are redrawn to be less overtly racist. That’s happened once again after the 2020 Census, despite the fact that the Supreme Court of the United States gutted many protections of the Act in 2019. In a nutshell, they ruled that gerrymandering in the name of politics is fine so long as the reasoning isn’t provably racist, even if the outcome is.
Despite that major setback, groups like the League of United Latin American Citizens (LULAC), Mi Familia Vota, and the Mexican American Bar Association are still launching their usual legal challenges. The wrinkle now is a legal argument the State of Texas is making that could scuttle all future fights.
The first is that private citizens do not have standing to sue under Section 2 of the Voting Rights Act, which is what makes racial gerrymandering illegal. According to briefs filed by the state, only the Department of Justice has the authority to challenge racial discrimination under Section 2. If that argument is upheld by the Supreme Court, it would more or less mean the end of legal challenges to discrimination in coting districts since the fight would be entirely at the whim of whoever runs the executive branch. Even if a president were to support such a challenge, their successor could instruct their DOJ to withdraw.
Second, the brief hypothesizes that Section 2 does not apply to redistricting at all. These arguments are based on legal opinions of Justices Clarence Thomas and Neil Gorsuch, who have increasingly framed the Voting Rights Act as an onerous infringement on state’s rights. With a 6-3 conservative majority on the Court, these arguments likely have the most receptive audience for such an argument that will ever be in place.
“It very clearly demonstrates that those in power are determined to hold onto it by any means necessary,” said Tarrant County Commissioner Roy Brooks to the Texas Tribune. “If that means trampling on the rights of Black and Hispanic voters, then they are more than willing to do that again and again and again.”
If either argument prevails, it will make fighting back against racially motivated gerrymandering all but impossible, leaving only direct intervention by the federal government as a stopgap. Meanwhile, Republicans will continue to create a virtual apartheid state that increases the power of rural whites at the expense of urban populations and racial minorities. It is likely the only way they have left to maintain their control of all three branches of Texas government.