Biden jeopardizes traditional Democratic seats in Texas due to redistricting battle

President Joe Biden‘s Justice Department is fighting to save Galveston County’s only minority-majority precinct in a high-stakes redistricting case that could alter how the Voting Rights Act is interpreted and may imperil South Texas Democrats — and Democrats nationwide.

The Galveston County Commissioners Court, the local governing body that drew the new map in 2021, contends that a minority-majority cannot legally be achieved by merely creating a coalition of Hispanic and black voters. While no single racial minority group made up the majority of voters in the county’s old Precinct 3, black and Hispanic voters collectively made up 58% of the precinct’s population in 2020.

In October 2023, U.S. District Judge Jeffrey V. Brown ruled that the new commissioners court map, which removed Precinct 3’s minority-majority status, violated Section 2 of the VRA, arguing the map “denies Black and Latino voters the equal opportunity to participate in the political process,” according to court records.

The map dispute has drawn the ire of civil rights groups, the Biden Justice Department, and local residents who were disgruntled over the changes made to the plan. But one local Republican commissioner told the Washington Examiner that Supreme Court precedent favors the newer map, and that Biden’s challenge against it could backfire heavily against Democrats.

“The Voting Rights Act is too important to be misused as a political weapon,” Republican Galveston County Judge Mark Henry said. “It’s important for the courts to recognize that it protects classes of people who are of the same race, not the same political party.”

The future of Section 2 at the heart of the Galveston County dispute

The dispute, known as Petteway v. Galveston County, stems from the Republican-led County Commissioners Court’s decision in 2021 to remove the only black and Hispanic-dominant precinct out of the county’s four precincts when it enacted its new redistricting map. Galveston County is primarily white and Republican, but black and Hispanic voters in the area lean Democratic.

The new map dismantles Precinct 3, a primarily black and Hispanic “coalition district” that has been led by Stephen Holmes, a black Democratic commissioner, for nearly 25 years. The changes have been described as “discriminatory” by plaintiffs in the case, which include NAACP branches, the League of United Latin American Citizens Council, the Texas Civil Rights Project, and the DOJ.

Henry defends the new map and has vehemently denied plaintiffs’ allegations that it undermines minority voting power.

From Henry’s perspective, the district court only ruled against the new map because Brown, an appointee of former President Donald Trump, was relying on outdated precedent under the U.S. Court of Appeals for the 5th Circuit.

The only way to draw a map in Galveston County with a majority non-white district is to “make race the exclusive priority when placing lines and to flatten all racial and cultural diversity in the County into non-whiteness,” Henry told the Washington Examiner.

The 5th Circuit later ruled on Dec. 7, 2023, to pause Brown’s order requiring Galveston County to implement the commissioners court’s districts that maintain the prior Precinct 3 shape. Plaintiffs appealed to the Supreme Court, and the justices ruled 6-3 on Dec. 12 to leave the new districts in place. The majority of the high court justices did not explain their ruling.

Elena Kagan, one of three Democratic-appointed justices on the high court, was joined in dissent by Justices Sonia Sotomayor and Ketanji Brown Jackson, writing that the 5th Circuit “disrupted the status quo — an election map concededly lawful under circuit precedent and nearly identical to the maps that have governed the election of Galveston County’s commissioners for decades.”

In the Supreme Court’s 2009 Bartlett v. Strickland decision, the justices held that the Voting Rights Act only applies where minority groups have less opportunity than others to elect a candidate of choice, not when a specific minority group needs assistance from another minority group through the political process to elect a candidate.

Placing Bartlett in the context of Galveston County, Henry contends two distinct minority groups cannot combine to raise a VRA claim.

The VRA was intended to remedy that type of racial discrimination, not “perpetuate the sort of polarization and stereotyping the Plaintiffs rely on in our case,” he added.

What are civil rights groups saying?

The plaintiffs in the Galveston case argue that the commissioners court exploited the Supreme Court precedent that invalidated a law requiring federal approval for new voting maps in jurisdictions with a history of voting rights violations.

“Map 1 accounts for all current incumbents, and its use will maintain the status quo for voters because it is a least-change plan based on a decades-old configuration of the commissioner precincts,” Hilary Harris Klein, an attorney with the Southern Coalition for Social Justice representing the activists, told the Supreme Court in the December petition.

“By contrast, the 2021 enacted plan that defendants desire would effectively ‘extinguish the Black and Latino communities’ voice on [the] commissioners court’ and ‘shut [them] out of the process altogether,’” Klein added.

In addition to the Bartlett precedent, defenders of the new Galveston County map say the changes were made possible due to a 2013 modification to the VRA known as the Supreme Court Shelby County decision, which blocked a requirement for counties to pre-approve district map changes with the Justice Department.

Yet the Biden administration is operating as if those requirements are still in place by joining the plaintiffs in the Galveston County case. Meanwhile, the years of litigation have forced the county to spend close to $5 million in legal fees to defend a voting map it contends is in accordance with the Supreme Court’s precedent.

“The Biden DOJ is misusing the Voting Rights Act as a weapon for the Democratic Party to bully Republican legislators,” Henry said. “As politicians, it’s our duty to stand up and fight for the rule of law.”

The Biden DOJ could be pushing its luck for Democrats who cling to Section 2

Henry indicated he is confident that the new map will sustain legal scrutiny even if it leads to a battle at the Supreme Court, in part because there is a split among the U.S. Courts of Appeals for the 6th Circuit and the 11th Circuit when it comes to minority-coalition Section 2 claims. The 6th Circuit has rejected them, and the 11th Circuit has authorized them.

In November, a three-judge panel on the 5th Circuit consisting of appointees from Presidents George W. Bush, George H.W. Bush, and Ronald Reagan acknowledged that while it is bound by 5th Circuit precedent allowing for minority-coalition Section 2 claims, it believes prior decisions permitting such claims are “wrong as a matter of law.”

“The 5th Circuit’s prior opinion on this issue did not address the question of coalitions as deeply or directly as the 6th Circuit,” Henry said, indicating that the litigation spurred by Biden’s DOJ could toss coalition districts into a legal gray area, which could spell a disaster for Democrats who rely on such districts.

5th Circuit to reconsider redistricting precedent under Voting Rights Act

The 5th Circuit is now poised to rehear the Galveston County map dispute before an en banc panel, meaning an argument before the circuit court’s full bench of judges, on Tuesday.

If the court rules in favor of the defendants, it could spell trouble for Democrats because the case could ultimately make its way back to the Supreme Court for an argument on the merits. For that to happen, the losing party would have to file a petition and gain the votes of four or more justices for them to consider the case.

“As personnel have changed on the courts, there’s been an increased appetite in revisiting some of the previous holdings of the circuit,” Derek Muller, a professor of law and election law expert at Notre Dame, told the Houston Chronicle in December.

“Section 2 of the Voting Rights Act is obviously contentious,” Muller added. “And multiple Supreme Court decisions lately have gone multiple directions, some in favor of the plaintiffs and some in favor of the states.”

In neighboring Harris County, which contains Houston, the seats of Democratic U.S. Reps. Lizzie Fletcher, Al Green, and Sheila Jackson Lee could all be affected if the Supreme Court were to adopt a standard similar to the 6th Circuit against coalition districts.

It’s no doubt a risky legal fight for Democrats, as coalition districts are also facing challenges in states such as Georgia, which is covered under the 11th Circuit.

How do recent Supreme Court rulings signal fate for Section 2?

The last major Section 2 dispute before the Supreme Court came down on June 8, 2023, when the justices ruled 5-4 in Allen v. Milligan to maintain a lower court injunction that required Alabama to create an additional majority-minority district.

The majority in Allen, composed of Chief Justice John Roberts, Justice Brett Kavanaugh, and the court’s three Democratic-appointed justices, upheld the lower court’s ruling. They concluded that Alabama’s new congressional map likely violated the VRA by diluting the voting power of black people, particularly in the “Black Belt” region. The majority of justices rejected the state’s argument that a race-neutral benchmark should be used in evaluating redistricting plans and emphasized the importance of considering the entirety of the circumstances under the VRA’s requirements.

On the other hand, the dissent, written by Justice Clarence Thomas and joined by Justices Neil Gorsuch and, in part, Samuel Alito and Amy Coney Barrett, argued against the majority’s interpretation. They contended that Section 2 does not apply to redistricting and criticized the Supreme Court majority for what they saw as a hijacking of the redistricting process to allocate political power based on race. Alito also wrote a separate dissent, joined by Gorsuch, criticizing the majority’s decision as inconsistent with the text of Section 2 and the principle of avoiding race-based decisions by states.

Henry contends the problem that “all parties agree” within the Galveston County case is that there aren’t enough black or Hispanic voters to draw a district in the county that is majority black or majority Hispanic.

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For the plaintiffs who say the new Galveston County map discriminated against minority voters, Henry argues that cannot be the case because the area is becoming “less segregated and polarized over time.”

“The predictable result of that trend is what we see here, it becomes impossible to draw a box that separates people into racial groups while keeping the population in each district equal,” he said.