The federal lawsuit will face significant hurdles in court. Unlike in past decades, Texas did not have to submit its maps for prior clearance by the Justice Department under Section 5 of the Voting Rights Act, which the Supreme Court neutered in 2013. The Justice Department now has the burden of proving the Texas maps violate federal law, as opposed to Texas being required to demonstrate they are legal.
Redistricting at a Glance
Every 10 years, each state in the U.S is required to redraw the boundaries of their congressional and state legislative districts in a process known as redistricting.
- Redistricting, Explained: Answers to your most pressing questions about redistricting and gerrymandering.
- Breaking Down Texas’s Map: How redistricting efforts in Texas are working to make Republican districts even more red.
- G.O.P.’s Heavy Edge: Republicans are poised to capture enough seats to take the House in 2022, thanks to gerrymandering alone.
- Legal Options Dwindle: Persuading judges to undo skewed political maps was never easy. A shifting judicial landscape is making it harder.
That Supreme Court decision also eliminated the ability to sue states under the Voting Rights Act in federal court in Washington, D.C. Instead, the lawsuit against Texas was filed in El Paso, meaning any appeal would go through the Fifth Circuit, which is stacked with conservative judges.
“They have a major home-court advantage in Texas because you go to the Fifth Circuit,” said Tom Perez, a former head of the Justice Department’s civil rights division and former chairman of the Democratic National Committee who is now running for governor of Maryland. “The oldest play in the far-right playbook, whether it’s voting rights, abortion rights, labor rights — go to court in Texas.”
The lawsuit follows a 2019 Supreme Court ruling that significantly weakened the legal grounds for challenging voter maps. In Rucho v. Common Cause, the court ruled that partisan gerrymandering — maps designed to favor a political party — could not be challenged in federal court (though racial gerrymandering remained unconstitutional).
The Justice Department does have an advantage from one element of the law. Though the lawsuit makes numerous claims that Texas lawmakers drew intentionally discriminatory maps, there is no requirement that the Justice Department prove intent to successfully challenge the Texas maps under the Voting Rights Act.
“The Voting Rights Act sets up vote dilution, and vote dilution does not have to prove intent,” said Thomas A. Saenz, the president of the Mexican American Legal Defense and Educational Fund.
The lawsuit over redistricting comes as President Biden and congressional Democrats face pressure to challenge Republican state legislatures around the nation that have sought to curb voting access.