Merrick Garland’s Texas lawsuit shows the war on democracy is succeeding

Merrick Garland’s Texas lawsuit shows the war on democracy is succeeding

U.S. Attorney General Merrick Garland speaks at a news conference at the Justice Department in D.C. on Dec. 6. (Joshua Roberts/Bloomberg)

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By Paul Waldman

Columnist

Today at 12:59 p.m. EST

In 2020, Democrats seized national power, winning the White House and complete control of Congress. In 2021, Republicans are determined to make sure such a thing never happens again — and the plans they’ve been laying for decades are making that not only possible but likely.

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Perversely enough, a new lawsuit filed by the Justice Department — exactly the kind of forceful action in defense of democracy and civil rights that liberals hope to see — shows just how successful Republicans have been. In fact, rather than being evidence that Democrats are fighting for voting rights, the suit mostly shows what a spectacular disadvantage they face.

The lawsuit charges that when Texas Republicans redrew their state legislative and congressional districts, they discriminated against minority voters by reducing their ability to elect representatives of their choice. The foundation of the claim is that while Texas grew enough over the past 10 years to be given two additional congressional seats, and about 95 percent of that population growth came among minorities, especially Latinos, Republicans redrew the districts to guarantee even more power to White voters.

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The suit details a number of techniques the legislature used to dilute Black and Latino power, including the process of “cracking,” which splits an area where certain voters are concentrated and combines the parts with more heavily White districts. Imagine a pie with a largely minority city at its center, cut into slices that get larger as you move out toward the whiter suburbs.

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Justice Department sues Texas over new voting laws

Attorney General Merrick Garland on Dec. 6 announced the Justice Department had sued Texas over its new redistricting maps, citing discrimination against minorities.

Attorney General Merrick Garland on Dec. 6 announced the Justice Department had sued Texas over redistricting maps, citing discrimination against minorities. (The Washington Post)

For example, the lawsuit says that in the Dallas-Fort Worth area, Republicans did this by “excising rapidly changing communities from DFW-based districts and attaching them instead through a narrow strip to several heavily Anglo counties.”

The suit documents multiple districts in which the power of minority voters was diluted. It notes that “in every redistricting cycle since 1970, courts have found that one or more of Texas’s statewide redistricting plans violated the United States Constitution or the Voting Rights Act.”

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The difference is that in previous rounds of redistricting, the Justice Department had to approve Texas’s maps to ensure they didn’t discriminate. That’s no longer the case.

Which brings us to the larger legal context here, a dramatic rewriting of voting rights laws that the Supreme Court’s conservative majority has undertaken over the last decade.

First, in Shelby County v. Holder (2013), the court eviscerated the Voting Rights Act, declaring that states with a history of discrimination (such as Texas) would no longer need federal “pre-clearance” for voting changes. Prior to that, the Justice Department would have to certify that such changes didn’t discriminate against minority voters.

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Next, in Rucho v. Common Cause (2019), the court declared that while racially discriminatory gerrymanders are still illegal, partisan gerrymanders are permissible. Parties can disenfranchise as many people as they want through the drawing of district lines, so long as this is not ostensibly because of their race but because of which party they’ll likely vote for.

Finally, in Brnovich v. Democratic National Committee (2021), the court made it harder for plaintiffs to show that a law violates what remains of the VRA when it has discriminatory effects. They essentially said that even a law that disproportionately makes it harder for minorities to vote could still be permissible if the voting booth was not totally closed to them.

The fact that the Justice Department has to file this lawsuit at all shows the problem it faces. As Attorney General Merrick Garland noted while announcing the suit, if the department still had the pre-clearance tool, “we would likely not be here today announcing this complaint.”

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But when the Supreme Court eliminated pre-clearance in Shelby, it effectively said that instead of the Justice Department judging whether states are passing discriminatory laws, it will be the courts that decide. Which means it will be the Supreme Court that decides.

And since the Supreme Court will be in Republican hands for the foreseeable future, that means Republican states can be pretty much as discriminatory as they want. Lawsuits challenging their actions will be doomed, because they will be decided by the same justices who worked to make it impossible to stop discriminatory voting laws.

Sure, GOP-run states will have to come up with some fig leaf rationale for changes they make. They’ll say, “Hey, we aren’t trying to disenfranchise minorities. We’re just trying to disenfranchise people who might vote for Democrats! Who happen to be minorities!” And the court’s conservatives will say, “Sounds good. You’re free to proceed.”

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Liberals frustrated at the difficulties of politics and policymaking often beg Democratic officials to act, to fight, to do something. But this lawsuit shows that doing something doesn’t always work.

What would? One answer is to pass the multiple bills proposed in Congress by Democrats to guarantee voting rights and end partisan gerrymandering. But those are currently hostage to the refusal of Sens. Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) to consider reforming the filibuster.

The less satisfying answer is to elect more Democrats, so they can reform the filibuster even without Manchin and Sinema. But if Democrats lose the House next year — which they probably will — it wouldn’t matter, since no bill securing voting rights will pass.

And that’s precisely the outcome Republicans have almost guaranteed through partisan gerrymandering, enabled by their control of the Supreme Court. It’s a straitjacket meant to bind democracy from every direction and enable minority rule. And it’s hard to see a way out.