It’s not exactly a big secret that Texas Republicans drew their state’s district lines in order to maximize the weight of Republican voters and minimize the voting strength of Democrats. Still, this isn’t normally something that a state’s top legal officer openly admits to in a brief filed with a federal court. Nevertheless, Texas Attorney General Greg Abbott (R) is so confident that the courts will let Texas Republicans get away with rigging elections that he openly brags about his fellow Republicans’ efforts to do so in an official court filing. According to a brief Abbott filed earlier this month, “[i]n 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party’s electoral prospects at the expense of the Democrats.”
The reason for this admission is that Texas is currently defending against a lawsuit seeking to bring its voting laws back under federal supervision in the wake of the Supreme Court’s decision neutering the Voting Rights Act. A federal court recently found that Texas engaged in intentional race discrimination when it last drew its district lines, and a still-standing provision of the Voting Rights Act allows states that engage in such discrimination to be subject to federal supervision before they can enact new voting laws. Texas is now trying to defend against this attempt to bring them back under federal oversight by saying they weren’t engaged in racial gerrymandering at all — they were merely trying to rig elections so that Democrats would lose!
Texas is right, as far as it goes, that the purpose of the Voting Rights Act is to prevent race discrimination, not partisan gerrymandering. But that shouldn’t mean that the state is out of the woods. Partisan gerrymandering may not violate the VRA, but it violates the First Amendment, which prohibits laws that engage in viewpoint discrimination. When Texas draws lines to maximize Republican influence and minimize that of Democrats, it is essentially saying that people who hold one viewpoint should have their votes count more than people who espouse a different viewpoint. That is not allowed.
Nevertheless, partisan gerrymanders still exist because the Supreme Court’s five conservatives have consistently refused to consider their constitutionality — deeming partisan gerrymandering suits to fail under what is known as the “political question” doctrine. Yet Justice Kennedy, who’s cast the key fifth vote permitting such gerrymandering to continue unchecked, has also said that he will not completely rule out striking down a partisan gerrymander in the future. Citing one extreme example of a law he would strike down, Kennedy wrote in his concurring opinion in Vieth v. Jubelirer that “[i]f a State passed an enactment that declared ‘All future apportionment shall be drawn so as most to burden Party X’s rights to fair and effective representation, though still in accord with one-person, one-vote principles,’ we would surely conclude the Constitution had been violated.”
Texas has now openly admitted, in a legal document filed in a federal court, that it drew its district lines so as most to burden the Democratic Party’s rights to fair and effective representation. If Kennedy meant what he said in Vieth, then Texas’ effective admission that it violated the First Amendment cries out for Kennedy to finally do his job and strike down this unconstitutional gerrymander.