AUSTIN, TX — In the coming months, a federal appellate court in Texas will rule on whether the Justice Department can continue to have a say about how the country’s second most populous state handles that most basic right of a citizenry: voting.
But the case isn’t likely to end there. In the wake of the US Supreme Court’s far-reaching ruling on the Voting Rights Act earlier this year, top law-enforcement officials in Texas and Washington have staked out sharply different positions about how far federal authority extends, and how to interpret what the court said. Many observers anticipate the dispute will make it back to the top court, setting the stage for another historic ruling. The fate of redistricting plans, voter ID laws, and more hangs in the balance.
This is admittedly arcane material, and it can be a story only a lawyer could love. But it’s also consequential, especially since the federal government’s argument for continued oversight rests on claims that discrimination in election law is not just a historical artifact but a present-day reality. In essence, Texas—perhaps joined by North Carolina—is now ground zero in a legal and political struggle over the future application of historic voting rights laws.
But you might not get a feel for the urgency of the moment by reading recent coverage in the Texas press, which has veered more toward dutiful than enterprising. PolitiFact Texas has done its usual good job parsing fact from fiction in politicians’ statements, and there have been some recent helpful explanatory pieces. For the most part, though, energetic coverage and discussion of what’s at stake has come from elsewhere. (Earlier this summer, CJR’s Mariah Blake rounded up some of the best resources and reporting on this topic.)
Legal process stories are challenging, but there are openings for Texas journalists to do more here—both in terms of explaining why the argument matters, and in examining how well competing claims stand up to scrutiny. What follows is a pocket guide to what’s happening and how it has or hasn’t been covered so far.
Discriminatory redistricting or just partisan gerrymandering?
Here’s the backstory, in brief: Texas was one of nine states that was required under the Voting Rights Act to seek “preclearance” from the federal government for changes to its election laws. In June, the Supreme Court invalidated the act’s Section 4, which spelled out which states were covered by the law, on the grounds that the formula did not reflect contemporary circumstances. But several civil-rights groups brought a lawsuit asking federal courts to reimpose the preclearance requirement for Texas, arguing that the state qualifies under a separate section of the act because of current-day discrimination. And in late July, in a move that signaled the latest high-stakes battle between the state and the feds, US Attorney General Eric Holder announced that the Justice Department was joining the suit. Key to the plaintiffs’ arguments is the legislative map, since revised, passed in the state’s 2011 redistricting. A court ruling blocking that map said that the parties had “provided more evidence of discriminatory intent than we have space, or need, to address here.” (For a closer look at the court’s conclusions about the map, see this clear ProPublica explainer.)
The state’s reply, filed by Texas Attorney General Greg Abbott in early August, upped the ante further. Abbott’s brief denied that the maps were discriminatory, and said they were simply motivated by Republican lawmakers’ desire to lock in an advantage for the GOP. But it also argued that under the Supreme Court’s ruling this summer, preclearance is now only allowed for places that have engaged in “rampant, widespread, recalcitrant discrimination,” and it would be absurd to accuse Texas of such “1960s style” practices.
This amounts to a claim that the Supreme Court has, for practical purposes, already thrown out not just the preclearance formula but the concept of preclearance itself—and it’s the biggest reason why some observers expect the case to get back to the top court. Abbott’s brief, perhaps unsurprisingly, attracted critical coverage from some liberal outlets. But it was also flagged as momentous by election law experts. At SCOTUSblog, Lyle Denniston wrote: “The state thus is attempting to turn the new courthouse skirmish over a little-used section of the 1965 law… into a constitutional battle with high stakes for the future of voting rights.” Rick Hasen of Election Law Blog and Michael Li, who writes the Texas Redistricting & Election Law Tumblr, made similar points. Even The Economist took note.
It wasn’t much covered, though, in the Texas press. The San Antonio Express-News ran an angry editorial focused on Abbott’s brazen admissions of partisan gerrymandering, which it called “ethically corrupt.” But otherwise the development passed mostly without notice—even though editorial boards and newsrooms around the state had covered Holder’s move.