The Supreme Court on Monday upheld all but one gerrymandered voting district in Texas, reversing lower court rulings that the districts unconstitutionally discriminated against voters on the basis of race.
In 2011, the Texas legislature redrew its electoral districts and sought preclearance from a federal court as was required by the Voting Rights Act. The court denied preclearance. Based on evidence that "discriminatory motive permeated the entire redistricting process," the court found that mapmakers acted with discriminatory intent.
Texas appealed, and after the Supreme Court removed the preclearance requirement in Shelby County v. Holder, lawmakers made the maps permanent.
In 2017, a federal court panel unanimously ruled that Texas had diluted Latino votes in violation of the Constitution and the Voting Rights Act, which bars legislators from drawing district maps that dilute minority votes by packing minority voters into a few districts and distributing the rest throughout majority-white districts.
This week's 5-4 decision in Abbott v. Perez reversed that ruling (except for one state House district that it agreed was an impermissible racial gerrymander). Justice Samuel Alito wrote that the lower court had "disregarded the presumption of legislative good faith" and unfairly concluded that Texas lawmakers had engaged in racial discrimination.
Justice Sonia Sotomayor, in a dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, wrote that the majority "disregard[ed] both precedent and fact . . . at serious costs to our democracy."
The majority "blinds itself to the overwhelming factual record below," she wrote, which shows "undeniable proof of intentional discrimination."
The record, detailed by the dissent, reveals the unquestionable discriminatory impact of these maps in a state with a long history of discrimination against minority voters. It also shows that the Texas legislature adopted maps it knew were tainted by discrimination as part of a litigation strategy to "maintain the benefit of such discrimination and unconstitutional effects."
As a result, Justice Sotomayor wrote, "minority voters in Texas—despite constituting a majority of the population within the State—will continue to be underrepresented in the political process. Those voters must return to the polls in 2018 and 2020 with the knowledge that their ability to exercise meaningfully their right to vote has been burdened by the manipulation of district lines specifically designed to target their communities and minimize their political will." The dissent concludes:
The Equal Protection Clause of the Fourteenth Amendment and §2 of the Voting Rights Act secure for all voters in our country, regardless of race, the right to equal participation in our political processes. Those guarantees mean little, however, if courts do not remain vigilant in curbing States’ efforts to undermine the ability of minority voters to meaningfully exercise that right. For although we have made progress, “voting discrimination still exists; no one doubts that.” Shelby County, 570 U. S., at 536. The Court today does great damage to that right of equal opportunity. Not because it denies the existence of that right, but because it refuses its enforcement.
Justice Clarence Thomas wrote a brief concurring opinion that was joined by Justice Neil Gorsuch. He reiterated his longstanding opinion that the Voting Rights Act does not prohibit racial gerrymandering at all. Mark Joseph Stern warns in Slate that, if the Court were to overturn decades of its precedent and adopt this interpretation, the Voting Rights Act "could never again be used to stop racist mapmakers from diluting minority votes."