Redistricting in Texas: Time for #GregAbbott to lose in court again?

A federal judges' court troika in San Antonio has started its hearing on the state of Texas' proposed redistricting for U.S. House and state Lege seats, and the US Department of Justice is getting more involved, not just minority rights groups. Here's why:

“The state of Texas, as it has in redistricting cycles since 1970, adopted maps that discriminated against its citizens,” Bryan Sells, an attorney for the Justice Department’s Civil Rights Division, said during opening statements.

The big issue is one of intent, as the story notes:

 What’s at issue is whether Republicans drew the original maps with the intent to discriminate. If so, Texas could be required to continue seeking federal preclearance under Section 3 of the Voting Rights Act. That section has rarely been employed because the same effect was formerly achieved through the better-known part of the law that is now eliminated.

One of Texas attorney general and gubernatorial candidate Greg Abbott's flunkies denies such intent:

“No one in the Texas Legislature discriminated on the basis of race,” Patrick Sweeten, an assistant Texas attorney general, said during his opening statement.

However, that's hard to square with this:

Sells argued that an email written by an attorney for House Speaker Joe Straus, R-San Antonio, explains seeking blocs of voters with few Spanish surnames to pack districts that would otherwise favor minority candidates.

But Sweeten said that message was taken out of context and that the process was “not about just drawing the map but drafting legislation and getting enough support for it to pass.”

That is BS on the part of Sweeten, and we have a lot more evidence to that end.

Salon has a great story with the details:

On Nov. 17, 2010, Eric Opiela sent an email to Gerard Interiano. A Texas Republican Party associate general counsel, Opiela served at that time as a campaign adviser to the state’s speaker of the House Joe Straus, R-San Antonio; he was about to become the man who state lawmakers understood spoke “on behalf of the Republican Congressmen from Texas,” according to minority voting-rights plaintiffs, who have sued Texas for discriminating against them.

A few weeks before receiving Opiela’s email, Interiano had started as counsel to Straus’ office. He was preparing to assume top responsibility for redrawing the state’s political maps; he would become the “one person” on whom the state’s redistricting “credibility rests,” according to Texas’ brief in voting-rights litigation.

In the Nov. 17, 2010, email, Opelia asked Interiano to look for specific data about Hispanic populations and voting patterns.

“These metrics would be useful to identify the ‘nudge factor’ by which one can analyze which census blocks, when added to a particular district [they] help pull the district’s Total Hispanic pop … to majority status, but leave the Spanish surname RV [registered voters] and TO [turnout] the lowest,” Opiela writes to the mapmaker.

Interiano responded two days later: “I will gladly help with this Eric but you’re going to have to explain to me in layman’s terms.”

Let us explain in layman's terms, Mr. Interiano.

This was microtargeting Census tracts to make Hispanic districts a bare majority on paper, but doing so in a way that was intended to actually dilute Hispanic voting power.

As friend Perry notes in his blog on this issue, Opiela is a wingnut who ran for the GOP nomination for Ag Secretary this year, but couldn't make it to a runoff.

As for intent? About three years ago, in its Shelby County ruling, by a 5-4 (shock me) majority, the Supreme Court gutted Section 5 of the Voting Rights Act. That's the section that required "pre-clearance" of electoral boundaries in states like Texas that had shown a past history of discrimination. But ...

If the Obama administration and the minority plaintiffs show in Perez that the Texas defendants intentionally discriminated against minority voters by diluting their votes, they could dramatically undo the Texas consequences of Shelby.

But, the Salon piece notes that not all of the VRA was gutted.

(T)he high court stripped only a pivotal lever used to trigger Section 5, specifically Section 4b of the same act. That stricken provision laid out formulas for determining which states, based on their histories of discrimination, the Department of Justice could impose preclearance requirements upon.

The Shelby ruling left intact: Section 3 of the Voting Rights Act — or its “Secret Weapon,” as Travis Crum, a former clerk for U.S. District Judge David S. Tatel of the D.C. Circuit Court of Appeals, refers to the provision in his 2010 Yale Law Journal article. In the article, Crum explains that the Voting Rights Act’s Section 3 allows: a federal court to find evidence of a state intentionally racially discriminating against voters and therefore order the state to submit to DOJ preclearance.

Nina Perales, vice president of litigation for MALDEF, the Mexican American Legal Defense and Educational Fund in San Antonio, who represents Perez plaintiffs, believes Opiela’s emails show evidence of intentional discrimination and thereby provide the federal government with a spare key to restart Section 5, replacing the one the Shelby decision removed from the ignition.

And that's why Abbott's flunky protested so vociferously.

That said, this will be way too late to affect 2014 elections, and AG Strangeabbott will do his best, especially if elected governor, to try to make sure it doesn't affect 2016 either.