Roots of ‘racial gerrymander’ ruling lie in Forth Worth Democratic primary fight
Changes to the boundaries of a Texas voting district that the U.S. Supreme Court yesterday found to be “racially gerrymandered” were engineered by a white Democrat attempting to dilute Latino voting power in a tightly contested primary fight against a Latino opponent, according to court filings relating to the case.
The Fort Worth area House District 90 was the only Texas voting district found by the Supreme Court to be illegal on the basis of gerrymandering, the practice of drawing district lines to unfairly suppress the voting power of a group in violation of the Voting Rights Act of 1965.
Most of the Congressional and state legislative voting districts in Texas were enacted by lawmakers in 2013 during litigation in lower federal courts. With few changes, the state legislature adopted as permanent interim maps that were drawn up by federal judges.
Small tweaks were made to the maps proposed by the federal judges, among them boundary changes around the Fort Worth district then held by Representative Lon Burnam, a Democrat who had faced Latino opponents in primary elections ever since he had first won his seat in 1996.
By 2013, Burnam was concerned that the growth of the Latino population in his district could cost him his seat in a 2014 primary fight with a Latino opponent.
Ahead of a bruising primary fight, which Burnam ultimately lost to Ramon Romero Jr, Burnam hatched a plan to move the African-American neighborhood of Como into his district. Historically, Como had not supported Latino candidates in Democratic primary elections, and Burnam hoped that Black voters would support him in higher numbers. The Como precinct had been part of Burnam’s district but he lost it in a 2011 redistricting.
“Rep. Burnam directed his chief of staff, Conor Kenny, to use the State’s redistricting software to redraw HD90 to include Como. Intending to offer the redrawn HD90 as an amendment on the House floor, Rep. Burnam discussed his proposal with the Chairman of the House Redistricting Committee, Drew Darby,” reads a plaintiff motion to the Supreme Court.
“Como was a high priority for Rep. Burnam. He visited the neighborhood at least every couple of weeks. He held campaign events in the neighborhood. He block-walked the neighborhood every election cycle. Rep. Burnam described himself as very familiar with the residents of Como,” the Texas Latino Redistricting Task Force said in its motion.
But Burnham ran into a problem. Darby, the redistricting chief, was determined to keep more than 50% Latino voters in District 90 in order to preserve it as a “a Latino opportunity district,” in compliance with the Voting Rights Act. That meant that he couldn’t simply swap out Black votes for Latino votes in the district.
The solution was to move out Anglo voters, effectively swapping them for Black voters, while trying to engineer the Latino proportion of the district to only a bare fraction over 50%. Justice Alito explained in his ruling, “the Legislature moved Como back. But that decreased the Latino population, so the Legislature moved more Latinos into the district.”
When Burnam spoke before the Texas House in 2013 urging the body to adopt his redistricting proposal, he explained:
“Basically what it does is take the African American and Hispanic population out of Representative Geren’s district and puts some of my Anglo population into his district. I believe it’s acceptable to the author (Chairman Darby).”
Burnam said himself, “We really made some ugly (district) lines to — basically we got rid of every white voter near the western boundary of the district to keep the Hispanic vote over 50 percent, but to get Como back into the district,” according to a motion by the Texas Latino Redistricting Task Force
U.S. Supreme Court Justices took issue with this redistricting approach, siding with Latino groups who had filed with the U.S. District Court for Western Texas last year with the complaint that “the configuration of HD90… [is] a racial gerrymander, intentionally dilutive of Latino voting strength and dilutive in effect.”
Justice Alito wrote that the 2013 map changes in District 90 needed firmer justification: “HD90 was not copied from the Texas court’s interim plans. Instead, the 2013 legislature substantially modified that district… Texas argues that its use of race as the predominant factor in HD90’s design was permissible because it had ‘good reasons to believe’ that this was necessary to satisfy §2 (of the Voting Rights Act). But it is the State’s burden to prove narrow tailoring, and Texas did not do so on the record here.”
“Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander,” Alito said.
Justices in Washington did not say what should be done about District 90’s boundaries, instead directing the district court to consider “what if any remedy is appropriate at this time.”
In spite of the 2013 redistricting, Rep. Lon Burnam lost his 2014 primary fight to his opponent Ramon Romero Jr. by a close margin, 51% to 49%. Romero went on to represent the district and was unopposed in both the 2016 primary and general election.
Rebuke to lower court
Yesterday’s ruling Abbot v. Perez is the high court’s second rebuke to the U.S. District Court for Western Texas over redistricting in Texas. In the 2012 case Perry v. Perez, the court invalided the lower court’s orders that Texas adopt voting district maps created by the court, though Texas later used these maps anyway in its 2013 redistricting.
Other than the Fort Worth district, all of Texas’ congressional and state legislative voting districts were upheld by the Supreme Court as legal. The court said that the “good faith of the state legislature must be presumed” and that plaintiffs have the burden of proof to prove a claim of discriminatory intent whenever state redistricting laws are enacted.
The decision of the court was 5–4, justices Sotomayor, Ruth Ginsberg, Stephen Breyer, and Elana Kagan dissenting. These judges said that the plaintiffs had given “undeniable proof of intentional discrimination.” They predicted that the outcome of this ruling will be that minority voters in Texas will be “underrepresented” at the polls in 2018 and 2020.
Justices Clarence Thomas and Neil Gorsuch sided with the majority but included a separate opinion noting that they didn’t think the redistricting of District 90 should be invalidated, arguing that the 1965 Voting Rights Act cannot actually be used as a basis to invalidate district lines anywhere.
