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Aug 16 2013

Texas AG Admits to Gerrymandering

In a rather extraordinary development, Texas Attorney General Greg Abbott is admitting that the Republican-controlled legislature in that state gerrymandered their electoral districts to hurt Democrats’ chances of winning a majority of seats. He did so because it’s better to admit to that then to gerrymandering for racial reasons.

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!

But this is not an either/or. Gerrymandering to hurt the Democrats is often accomplished by drawing districts in a manner that puts a huge portion of minority voters into a single district so they only get one elected representative rather than having enough of a voice in several districts to influence the overall outcome of the election. This goes on in nearly every state every ten years and the Democrats do it too (in fact, sometimes the Democrats prefer similarly ghettoized districts to ensure that minority voters have at least one representative). You can read Abbott’s full brief here.

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  1. 1
    Chiroptera

    What’s amazing to me is the admission that they don’t believe that there is anything wrong with doing this.

  2. 2
    Loqi

    The gerrymandering is so blatant that not even a Republican can be a denialist about it? I didn’t think such a level of obviousness even existed.

  3. 3
    machintelligence

    Chiroptera @ 1
    In their opinion there is not. They don’t play fair, they play to win.

  4. 4
    schism

    [Republicans] don’t play fair, they play to win.

    That would explain why they keep winning.

  5. 5
    Modusoperandi

    “You still don’t get it, do you? He’ll beat you! That’s what he does! That’s ALL he does! You can’t stop him! He’ll wade through you, reach down your throat and pull your fuckin’ heart out! And also he’ll put a disproportionate percentage of your demographic in too few districts and spread the remainder out over too many.” ~ Kyle Reese in The [Electoral] Terminator.

  6. 6
    eric

    @1 – legally, there isn’t. Honestly I’m surprised either party has kept up the pretense of not doing this for so long.

  7. 7
    drr1

    I don’t know anything about the bail-in standard under the VRA, but I have to believe that there’s a good chance this kind of empty formalism will manage to slide under the radar. The Texas SG is Jonathan Mitchell, a very bright (and very conservative) guy who is on leave from George Mason law. Former Scalia clerk, former OLC; he knows what he’s doing.

    Certainly as an equal protection matter, political gerrymanders have the de facto blessing of the Supreme Court. See, e.g., Vieth v. Jubelirer, 541 U.S. 267 (2004). Indeed, the Court is pretty much prepared, in a political gerrymander case, to presume there was a discriminatory purpose behind the law – that is, after all, why gerrymandering is done. If you’re not screwing the target of the gerrymander, you’re not doing it right.

    So while it is perhaps shocking to see such a candid admission, I don’t think it says a thing about the state’s chances of success in the district court. Of course, even if DoJ succeeds here, it has a huge mountain to climb in the form of the Fifth Circuit and the Supreme Court. I really do appreciate the Administration’s efforts to keep the VRA alive, but I fear it is a losing cause.

  8. 8
    Synfandel

    How can the country that stood as the great, shining example to the world of modern liberal democracy a couple of centuries ago have become so pathetically dysfunctional? You folks really need to read Canada’s Electoral Boundaries Readjustment Act and take notes.

    This ain’t rocket science (which, ironically, Americans are extremely good at). Just take the zoning of electoral districts out of the hands of politicians and professionalize it. You might want to do the same with judges, district attorneys, sheriffs, and dog catchers while you’re at it. You’d end up with fewer Mark Kesslers. Sometimes it seems like Americans can’t get a haircut without first democratically electing a slate of barbers.

  9. 9
    Ben P

    The gerrymandering is so blatant that not even a Republican can be a denialist about it? I didn’t think such a level of obviousness even existed.

    You’re not understanding the context.

    Under the Voting Rights Act post Shelby County v Holder the ONLY way to have a districting plan ruled unconstitutional is if the government can prove that those creating the plan Intentionally discriminated on the basis of race.

    Texas’ defense to this charge is as simple as it is ballsy. They say straight up. “We couldn’t possibly have intentionally discriminated by race, because all we care about is politics. We intentionally drew the districting map to benefit republicans. Race didn’t factor into it.”

    As drr1 notes, the Supreme Court has said 5-4 the political gerrymandering itself is a political question and they won’t consider whether it’s a constitutional right. With the current makeup of the court it’s less likely that such a challenge would get taken up. So, there’s actually a pretty good argument the political gerrymandering argument will work.

  10. 10
    abb3w

    Vieth v. Jubelirer does note that Article I Section 4 gives Congress power to say “screw it, we’re re-districting FOR you”, which would seem to mean that Congress has the power to prescribe by statute use of a particular districting algorithm for national elections — an interesting point, for advocates of “shortest splitline” and other alternatives, if one unlikely to be implemented at the current level of congressional dysfunction.

    VvJ also mentions the earlier Davis v Bandemer case as having given a standard “unmanageable in application”. However, it would appear that the Texas admission effectively stipulates “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group” — which would seem to leave application of the standard to this case particularly manageable.

  11. 11
    eric

    How can the country that stood as the great, shining example to the world of modern liberal democracy a couple of centuries ago have become so pathetically dysfunctional?

    Hate to burst your bubble, but in terms of gerrymandering, we’ve been this pathetically dysfunctional since the late 1700s. Its always been part of the system. I’m not defending the practice – I think your suggestions are reasonable – but I am pointing out that whatever great, shining example of modern liberal democracy you think we were, we became that example while gerrymandering.

  12. 12
    lofgren

    I was not aware that gerrymandering was something that politicians pretended not to do. I was under the impression it is considered simply a quirk of our political system. People outside the system are always pointing it out like it’s an accusation, but to anybody inside the system it’s like pointing out that we have an electoral college and shouting “Gotcha!” Their reaction is basically, “Yeah, and? Where have you been for the past two hundred years?”

  13. 13
    Synfandel

    @lofgren

    My wife says, “The garage door opener doesn’t work.”

    I say, “Yeah, where have you been for the past fifteen years?”

    She just doesn’t get it.

  14. 14
    zmidponk

    @lofgren, then the people inside the system are quite daft. The fact this problem has existed for 200 years or so doesn’t make it any less of a problem, nor does it automatically make any accusation/observation that it exists invalid. It merely means this is definitely a problem that should have already been fixed quite some time ago.

  15. 15
    vmanis1

    At the time of the American Revolution, most electoral systems were corrupt. England had `rotten boroughs’, cemeteries where the dead voted for the preferred candidate (this was before Buffy). In the late 19th century, Canadian elections required the voter to stand on a platform and proclaim his candidate’s name. Since the usual bribe per vote was a bottle of booze, the party operatives could verify a correct vote.

    Though no election system is completely clean, other countries have slowly fixed many of their systems’ defects. What I don’t understand is why the U.S. hasn’t followed suit.

  16. 16
    lofgren

    Zmidponk, it’s not that they think it’s an invalid observation. It’s just that they don’t really see it as a problem. The electoral college is the comparison I chose because it’s very similar, rhetoric-wise. Every cycle, some amateur pundit points out that there is an electoral college as if it is some kind of evil conspiracy, secure and confident that they only need to describe the way it works and everybody will instantly see that it is an obvious injustice, and utterly convinced that the only reason it hasn’t been done away with is that other people don’t even realize it exists. That’s not to say that you have to feel the same way about the electoral college as you do about gerrymandering. I’m against one but fine with the other. Just that there is a group of people who view those practices as so obviously unjust that they don’t have to even defend their arguments and another group of people who see them as simply the product of a quirky and highly complicated political system but not really inherently a problem for it.

  1. 17
    Cleverly Named Bunch o’ Links 8/16/13 | Gravity's Wings

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