In Lawsuit Against Texas Redistricting Maps, Plaintiffs See History Repeating

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The first time Thomas A. Saenz saw a fight about Texas redistricting up close and in person, it was 2003. He’d been out of law school a little over a decade and was dispatched to Texas to play what he describes now as a small legal part in a suit brought by the Mexican American Legal Defense and Educational Fund (MALDEF) to challenge the redistricting plan the state had first begun to develop two years prior.

In Lawsuit Against Texas Redistricting Maps, Plaintiffs See History Repeating
© Tamir Kalifa—Getty Images A map of state Senate districts is seen on a desk in the Texas Senate chamber at the State Capitol on Sept. 20, 2021 in Austin.

There, at multiple hearings, Texas’ Republican Attorney General, John Cornyn, argued on behalf of a set of election district maps that—as part of the normal process of accounting for population changes detected in the latest Census—a state redistricting board, controlled by Republicans, had approved. Saenz and others at MALDEF, as well as a number of other groups, were working to show that the maps had been drawn specifically to limit the number of districts where Latino voters made up a majority. Most of the time, Saenz’s bosses kept him so busy that he didn’t watch then Texas Solicitor General Ted Cruz, also a Republican, at daily press briefings.

The list of redistricting twists and turns in Texas is long. In that particular case, civil rights lawyers in the U.S. Justice Department eventually deemed the state’s Congressional maps unconstitutional, before being overruled by political appointees as the process of adjusting the maps dragged into the following years. Some questions on the subject went all the way to the U.S. Supreme Court, where the state won. When it came time to redistrict after the 2010 Census, a legal battle over the maps and power happened again. A compromise was ultimately reached. By that time, Saenz had risen through the ranks to become president and general counsel of MALDEF. Cornyn was a U.S. Senator; Cruz would join him in 2013.

Today, all three men remain in those roles. And, just like the cast of characters, not much has changed in the fight over the maps. On Monday, MALDEF filed suit to stop yet another set of district maps approved by the Texas legislature.

Much as the state’s proposed maps did in 2001 and again in 2011, the 2021 maps bolster the number of districts where white voters dominate. That’s despite the fact that 95% of the state’s population growth in the last decade came from families of color. And the majority of those new Texans are Latino Texans. Yet the maps drawn up by the legislature would reduce the number of districts where Latino voters make up the majority and will likely be able to elect the candidate of their choice. Texas Governor Greg Abbott, a Republican, is expected to approve the maps. MALDEF’s redistricting suit has been assigned to a three-judge panel based in El Paso, as state officials seek to have the case moved to Austin.

Governor Abbott and Deputy Secretary of State Jose Esparza have not commented on the litigation. Requests for comment were referred to the state’s current Attorney General Ken Paxton, who did not respond to a request for comment. Right now, Republicans hold 23 or Texas’ 36 Congressional seats.

“There’s a continuity … in patterns and issues, but people too,” Saenz, who along with MALDEF is based in Los Angeles, tells TIME. “In Texas, there’s discrimination against Latinos, as the largest group, but also against Blacks and also against Asians.”

The situation in Texas is not unique. In late September, the ACLU and other voting rights groups challenged Ohio’s new map, accusing it of “entrench(ing) a Republican veto-proof supermajority in both chambers of Ohio’s General Assembly for the next four years.” That same month, two Democratic Alabama senators and four voters sued the state for its current congressional map—enacted in 2011— alleging that it packed “Black voters in a single majority-Black congressional district and minimiz[ed] their influence in five majority-white districts.” On Oct. 15, the NAACP and the United Congress of Community and Religious Organizations sued Illinois over its new state legislative district maps, which they allege undermine the Black vote by splitting Black residents into multiple House districts in an effort to secure victory for white Democratic incumbents. And MALDEF has filed a suit alleging similar things about the impact of Illinois’ plans on Latino voters.

But in Texas in particular, those fighting the new maps see themes of the past repeating themselves in the present. Among the individual Latino voters and civil rights organizations suing Texas and counting on MALDEF to present their case in federal court is the Southwest Voter Registration Education Project (SVREP), a non-partisan Latino voting rights organization based in San Antonio. It was founded in the late 1960s after President Lyndon B. Johnson, a Democrat and a Texan, pushed the Voting Rights Act through Congress. Latino activists around the state began to talk about forming organizations that could imitate, customize and further capitalize on some of the civil rights gains secured by organizations like the NAACP’s Voter Education Project and the NAACP Legal Defense and Educational Fund, the organization behind Brown v. Board of Education and many other major cases.

But Johnson’s legislative victories creating civil rights enforcement in voting, housing and other arenas also helped shift the political map. Johnson, in a legendary and perhaps apocryphal comment, is said to have predicted as much to an aide as he signed the Voting Rights Act into law: “We’ve lost the South for a generation.” White voters in the South who were opposed to civil rights gains for people who were not white responded in droves to subtly and overtly racist appeals to move from the Democratic Party to the Republican Party. Today, most white Southerners are Republicans and Southern states deep red.

Back in the ’60s when the SVREP was getting started, says the organization’s current president Lydia Camarillo, Texas was a place where signs were not hard to find that made who had power—and an overt and sometimes brutal form of it—plain. Those signs, plastered on doors and water fountains and storefronts read, “No dogs, No Negroes, No Mexicans.”

“It feels like it’s that time all over again,” Camarillo, who is based in San Antonio, says. “The atmosphere… We’re in the same place.”

Yes, the signs and legal segregation are gone, Camarillo acknowledges. But when a coalition of about 30 Latino civil rights organizations drew up redistricting suggestions that would have preserved all the state’s majority-Latino Congressional districts while adding two new ones, and leaving the state’s majority Black districts in place, they didn’t even have a chance to present their ideas.

In addition to the redistricting dispute, the Southwest Voter Education project is suing the state over a new law that will, among other things, bar 24-hour voting sites, an adaptation made in 2020 in the county that includes Houston and much of the state’s Latino population growth. MALDEF is providing the group’s legal work in that case too.

“We want to make sure that Latinos have a voice,” Camarillo says. “Voting for a candidate of their choice is fundamental in democracy. And not having that option and that choice tears down democracy.”

When she talks to voters, these days often via Zoom, Camarillo tries to put that in the most evocative terms that she can. She talks about disparate school conditions and she poses a question. How can it be right, she asks, that in a state that is getting the only new Congressional seats in the country to come out of the 2020 Census count, a state where population growth has been driven by communities of color, those populations would find that “they no longer have what they have today”?

Right now, there are nine Latino majority Congressional districts in Texas. The new maps leave the state with seven. By the task force’s calculations, Texas should be a state with 11 majority Latino districts.

Similar patterns have pervaded redistricting, Camarillo says, for at least five decades.

“Why would the Texas legislature bother doing this?” she says. “Power and greed.”

When the case gets to the stage where each side will make its arguments, Saenz anticipates that state officials will argue that the maps do not violate the Constitution because the districts have been drawn for a partisan advantage. In June 2019, the Supreme Court ruled that drawing district lines to create partisan advantage—what most people call gerrymandering—is legal. But, in practice, MALDEF’s lawyers will argue, the maps that the Republican-controlled legislature approved rob Latino voters of political power, give it to white voters and, Saenz says, veer into illegal racial gerrymandering.

These arguments, too, are not new—but there is new reason, Saenz believes, for urgency on the side of those who support the new maps. By 2001, it was already clear that Texas was less than a generation away from becoming a so-called “majority-minority” state—more accurately, a state where people of color make up the majority of residents and, with time, eligible voters. In the summer of 2019, the Census Bureau estimated that nearly 60% of the state’s population were people of color. Now, state demographers estimate that sometime later this year the Latino population alone will grow larger than the number of white residents.

In Texas and the rest of the United States, race and ethnicity remain closely connected with everything from when and in what health one is born, to the jobs for which one will be considered and how much one will be paid, whether one will have the funds to retire and, finally, when one will die. That’s why those factors are also closely linked with party identity. In Texas, there are exceptions, but the majority of white voters are Republicans and the majority of Black, Latino and Asian voters are not.

“That’s why it was a contested state in recent elections,” Saenz explains. “It had not been for quite some time. So, yes, there’s a certain increased anxiety, even desperation, I think when it comes to retaining the level of power enjoyed by the Republican Party in Texas today.”

But, the fight for voting rights isn’t a partisan issue, and shouldn’t be, Saenz says. MALDEF is a non-partisan nonprofit organization. Its work in Illinois, for example, involves a suit alleging that the Democrats who control the legislature have drawn district lines that will make it more likely that the white politicians already in office will keep their seats. In Illinois, as in Texas, MALDEF argues that district lines have been drawn to intentionally disperse Latino voters rather than give them the mathematical possibility of electing who they wish. That person could be the white incumbent, or perhaps someone else, Saenz says. That possibility is what the law and the democratic tradition demands.

Besides, anything else eventually runs aground, he says. Political investments and voter mobilization work combined with significant population change in Georgia proved that to be true in 2020, Camarillo points out.

Right now, in Texas, Saenz argues, instead of shifting its positions to appeal to a changing population, the Republican party has instead shifted district lines. And, in the Trump era, they have doubled down on “a more open and aggressive” anti Latino, anti-immigrant stance, Saenz argues, and silenced more moderate voices including those of famed GOP political strategists Karl Rove and Lionel Sosa, who has advised Republicans how to win Latino voters going back to the 1970s.

California Republicans took a similar turn in the 1990s, alienating Latino, Black and Asian voters, and eventually white women, along the way. Since that time just about every state office in California and most federal ones have been held by Democrats.

“If you alienate Blacks, Latinos, Asians and white women, you can’t win an election,” Saenz says. “That’s the reality right? You can get a short term gain… but after that, California is as blue as they come.”

With reporting by Sanya Mansoor

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