In what is sure to be a long court fight over the newly drawn congressional and legislative district maps, the State of Texas has a new, novel defense; no one is allowed to challenge them.
The new maps are under legal challenge based on the fact that they underrepresent minorities in the state. Despite being responsible for 95 percent of the population growth in the last decade according to the results of the 2020 U.S. Census, the new maps break up minority communities and pack them into different white majority districts. This has the effect of giving white Texans majorities in 60 percent of districts while only making up 42.5 percent of the population.
Because of the clear racial gerrymandering, multiple groups are launching legal challenges under the Voting Rights Act. The state has now responded to the one being brought by the League of United Latin American Citizens (LULAC), Mi Familia Vota, the Mexican American Bar Association, and others, asking for a dismissal. Among many other claims, the state alleges that private citizens do not have standing to sue under Section 2 of the Voting Rights Act.
“The Supreme Court has never decided whether Section 2 contains an implied private cause of action,” reads the filing.
Section 2 of the Voting Rights Act makes it illegal to gerrymander a district for the purpose of suppressing voting power based on race. Strictly political gerrymandering was deemed acceptable in a 2019 Supreme Court case, but the two intentions are often intermingled. The majority of minorities tend to vote Democrat, making any political gerrymandering also racial almost by definition.
The filing by the state does admit that some legal opinions have implied that Section 2 does give private citizens standing to sue but says that these implications are inconsistent with other Supreme Court decisions. The case specifically cited is Alexander vs. Sandoval, which found that regulations enacted under the Civil Rights Act of 1964 did not confer the right to legal action in a case of non-intentional discrimination. The filing also claims that the Voting Rights Act did not actually create a right to vote in spite of the discrimination, and therefor there is no right to be contested under its statute.
Basically, the framework of the Republican-drawn maps hinges on a couple of legal ideas. The first is that because they aren’t specifically saying that they are attempting to lessen the electoral impact of non-white Texans, merely Democratic voters, they are legally in the clear when it comes to the Voting Rights Act. The second is that the only people who can legally challenge them are individual citizens who can prove that they were specifically targeted, not advocacy groups or even the federal government, and certainly not before an election has taken place.
Given the make-up of the Supreme Court, the second argument is liable to hold considerable weight. Justice Antonin Scalia wrote the decision in Sandoval, and there’s no indication that his ideological successors would have any less reason to deny standing to groups like LULAC.