Fortunately, the Justice Department has not given up its role as the principal defender of voting rights. On Monday, Attorney General Merrick Garland and Associate Attorney General Vanita Gupta announced a new lawsuit under Section 2 against Texas, contending its radical gerrymandering in the wake of the 2020 Census is a case of straight-up intentional discrimination.
Garland announced, “The complaint we filed today alleges that Texas has violated Section 2 by creating redistricting plans that deny or abridge the rights of Latino and Black voters to vote on account of their race, color or membership in a language minority group.”
While the Supreme Court this year, in Brnovich v. Democratic National Committee, made it more difficult to protect voting rights by weakening one part of Section 2 that prohibits voting measures that have a “disparate effect” on protected groups, this lawsuit goes to the heart of the VRA’s protections against intentional discriminatory redistricting. “The United States’ complaint contends that Texas’ redistricting plan for its congressional delegation violates Section 2 of the Voting Rights Act because it has the discriminatory purpose of denying or abridging the right to vote on account of race, color or membership in a language minority group in that it deliberately minimizes the voting strength of minority communities,” the Justice Department said in a written statement. The suit challenges the Texas State House redistricting plan as well.
Garland emphasized that the rationale behind the suit goes to “a core principle of our democracy” that “voters should choose their representatives, not the other way around.” Even without Section 5′s pre-clearance provisions and other setbacks at the Supreme Court, his department intends to force states to comply with the law. (He has also filed statements of interest in private litigation in Arizona and Florida, allowing the department to weigh in on those cases.)
Gupta explained that the VRA prohibits intentional “voting dilution” of minority voters. “Texas’ 2021 redistricting plans were enacted through a rushed process, with minimal opportunity for public comment, without any expert testimony, and with an overall disregard for the massive minority population growth in Texas over the last decade,” she noted. (This is the second lawsuit that the Justice Department filed against Texas this fall regarding voting rights. In the first, the department claims Texas violated voting provisions that allow officials to assist voters who have difficulty filling out their ballot.)
Texas, due to the 2020 Census, will gain two seats in the House. But the state designed both seats to have White majorities and redrew lines to eliminate a Latino-majority district, Gupta pointed out. She recalled that this is the third time in three decades that Texas has tried to limit the voting rights of Latinos in that district.
Texas’s reckless, repeated efforts to diminish Black and Latino voting power is a vivid example of the new Jim Crow-style measures that would have been blocked had the pre-clearance provisions of Section 5 been in effect. Gupta noted, “Decade after decade, courts have found that Texas has enacted redistricting plans that deliberately dilute the voting strength of Latino and Black voters and that violate the Voting Rights Act.” This blatant attempt to put the thumb on the scale on behalf of White votes is what the VRA was designed to prevent.
Garland was pointed in calling for Congress to reauthorize Section 5, which would require scrutiny of Texas’s plan before it goes into effect. Without a chance to look at plans in advance and with the burden of the proof now on the department, the odds are stacked against the Justice Department and voting rights complainants.
The department is facing a fusillade of voting rights attacks launched exclusively by Republicans in red states. Unless and until the Senate dispenses with the filibuster to pass meaningful voting reform, including reauthorization of Section 5, Republicans will have room to disenfranchise minority voters. The Justice Department cannot protect our democracy alone; it’s long past time for the Senate and White House to give them the tools they need to fight a wholesale effort to artificially inflate White voting power.