Point Austin: Supreme Confusion
Looking for justice, Texas voters return disappointed
Perhaps the best thing about the Supreme Court's recent decision in the Texas re-redistricting case is that it serves as an official legal rebuke to Congressman John Carter's inane declaration of a few days before, "I don't think we have racial bias in Texas any more." (The congressman resides in the Disneyland neighborhood of Williamson County.) That was in reference to House Republicans' rejection of renewal of the Voting Rights Act, on the grounds that it is no longer necessary. Besides, Carter said, we should go back to requiring voters to submit to literacy tests (i.e., proficiency in English). This episode is what is known as an "oxymoron," which upon reflection is also a synonym for "John Carter."
It was the Voting Rights Act that enabled the Supreme Court to come to the inescapable legal conclusion that the Tom DeLay-redrawn Congressional District 23, designated fiefdom of Republican Rep. Henry Bonilla, reflects a "troubling blend of politics and race and the resulting vote dilution of a group [Latino voters] that was beginning to achieve [the VRA's] goal of overcoming prior electoral discrimination." That is, faced with Bonilla's inevitable defeat because roughly 92% of Latinos refused to vote for him, DeLay's map drafters redesigned his district to eliminate roughly 100,000 Latino voters, while leaving just enough "voting-age" Latinos (i.e., including noncitizens) to maintain the illusion of a majority-minority district. Wrote Justice Anthony Kennedy for the court, "The majority of Latinos who were in the old District 23 are still in the new District 23, but no longer have the opportunity to elect their candidate of choice." QED, John Carter: That's called institutional racial discrimination.
The worst thing about the Supreme Court decision is of rather more consequence. The court managed to persuade itself, barely, that racial discrimination forbidden by the VRA occurred against Latino voters in CD 23, a result signalled by the public hearing, when Kennedy asked many testy questions about South Texas. But with the exception of Stevens and Breyer, the justices essentially dismissed out of hand the notion that quite similar discrimination against black voters in Tarrant County (districts 6, 24, 36, 32) also merited a VRA remedy. John Paul Stevens and Stephen Breyer found the "cracking" of CD 24 (Martin Frost's old district), an effective African-American "influence district," to be unconstitutional. But they could not persuade enough of their more open-minded colleagues (Antonin Scalia and Clarence Thomas, and most likely Samuel Alito, inevitably excepted) that the harm to black voters merited legal correction.
For those at all familiar with Texas racial history, it sounds very much like a lamentable chorus in the old Southern folk song, "If you're white, it's alright/If you're brown, stick around/But if you're black stay back, stay back, stay back ..."
Too Many Cooks
To a degree, the Court's decision is difficult to describe as "an opinion" at all, since by my count (which may well be an underestimate) the Syllabus lists at least nine distinct "opinions" covering both the bottom-line rejection of CD 23 and another more than half-dozen concurrences and dissents by various justices attempting to find nuance where there is only consternation. Kennedy's prevailing court opinion is joined by Stevens, David Souter, Ruth Bader Ginsburg, and Breyer, then in part by Alito and Chief Justice John Roberts, in yet other parts by Souter and Ginsburg. Stevens and Breyer issued their own dissent (focusing on North Texas but effectively rejecting the whole map); Breyer went a step further and judged the Texas plan "in its entirety" a violation of the Equal Protection Clause; Souter and Ginsburg delivered a more moderate demur, not quite declaring themselves but suggesting that the lower court should look again at CD 24; Scalia and Thomas, predictably, rejected the entire controversy as "non-justiciable" and purely a political matter for the states to decide. (It is sheer coincidence, in their reading, that the Democratic voters of South Texas also happen largely to be Latino; being "conservative," in the Scalia/Thomas definition, apparently requires stone blindness to actual U.S. history.)
It's undeniable that Americans as a whole now approach racial discrimination, and racial matters more generally, the way Victorian Englishmen once approached sex as little as possible, and with the pretense that whatever goes unmentioned in public in fact doesn't really exist at all. This willful ignorance is not quite possible to manage completely for South Texas, where the exploding Hispanic population required the court to notice that 100,000 Latino voters had been summarily re-redistricted eastward from Laredo for the sole reason that they had committed the impertinence of voting for somebody other than Bonilla. Yet the very same kind of re-drawing in CD 24 where black voters in Tarrant Co. had to be scattered to the suburban Anglo winds, because they continued to vote cohesively and effectively for Martin Frost was treated not worthy of remedy, at least in part because by re-electing an Anglo (Frost), they had somehow undermined their case of electoral effectiveness.
Yet even the GOP's re-redistricting honcho, Rep. Phil King of Weatherford, had hesitated from cracking CD 24, explicitly because he believed that to do so would likely violate the VRA. But DeLay was not to be denied in his very specific ambition of running Minority Whip Frost out of Congress. So under the pretense of creating a new African-American opportunity district in Houston, the mappers convinced themselves that CD 24 could be vivisected into Anglo-land thereby eliminating any congressional influence of Fort Worth's black community for the foreseeable future.
Yet Kennedy's own majority opinion explicitly rejects such a shell game for the Latino voters of both CD 23 and CD 25 (Austin to McAllen). "And a state may not trade off the rights of some members of a racial group," writes Kennedy, "against the rights of other members of that group." Yet that's exactly what happened to the black voters of North Texas and in truth, although their existence is virtually unacknowledged in all these pages of verbiage, the black voters of East Texas as well. The Republicans could not do what they wanted to do install not just a GOP congressional majority, but an overwhelming majority without discriminating against minority voters, brown and black. So that is what they chose to do.
And with the exception of CD 23, where the stench was just too obvious, the Supreme Court says, Too bad.
What's next? The details are uncertain. Bonilla's CD 23 will definitely be redrawn, which means neighboring CD 28 (Henry Cuellar) must alter, and more specifically CD 25, which created a visibly artificial "Latino" district by yoking together East Austin with McAllen, and largely nothing in between. The court called that transparently discriminatory, although it did not prescribe a specific remedy. That's probably good for Austin, as it will be hard to redraw 25 without returning to Austin, and trying to adjust neighboring districts to accommodate representation by an Austin-based member (likely to be incumbent Lloyd Doggett).
These changes tip dominoes elsewhere, and perhaps six or even eight districts will be redrawn to some degree. The result will be moderately better for Texas as a whole, although it will hardly succeed in returning the pendulum to some middle ground of electoral fairness for the Texas map already favored Republicans, before Tom DeLay took grasping hold of it. But too many of those Republicans (mostly in rural East Texas) were still voting for Democratic Congress members, and the sinister genius of DeLay's map is that even should they continue to do that it simply won't matter. As Stevens points out, under the prevailing map, "even if the Democratic party succeeds in convincing 10% of the people who voted for Republicans in the last statewide elections to vote for Democratic congressional candidates, which would constitute a major electoral shift, there is unlikely to be any change in the number of congressional seats that Democrats win." The result, Stevens writes, is an "impermissible stranglehold on political power."
The majority delivers that outcome with a shrug, and suggests in passing that an earlier (1991) Democratic map somehow justifies this Republican one. But the DeLay map makes the Frost 1991 map look timid by comparison; the 2002 judicial map had already remedied that gerrymander; and in any case, using redistricting to perpetuate white supremacist power, although under a transparently partisan guise, is not just political business as usual, but a retrenchment of class and racial discrimination against which the U.S. Supreme Court once provided a defender of last resort.
No more. The Supreme Court's decision leaves disenfranchised Texans to wonder, where shall we look for justice?