The six years since have been a blur of court cases and appeals, resulting in almost comically drawn interim districts and a robust conversation about the legal differences between political and racial gerrymandering. Two separate considerations of the voter ID law—whether it was racially discriminatory and whether that discrimination was purposeful—proceeded up and down federal courts. After Donald Trump was elected president and appointed Attorney General Jeff Sessions to lead the DOJ, the department famously withdrew its claim that the law had a discriminatory intent.
Now, with the dust settling on this latest round of court cases, the federal findings so far are clear. Both sets of political maps drawn in 2011 and the voter ID law had discriminatory impacts that violated the Voting Rights Act, and all three were enacted with intent of discriminating against minority voters, particularly Hispanic voters. Those findings of widespread discriminatory intent in recent Texas voting laws have been buttressed by some smaller legal flare-ups, like a lawsuit launched last year by Texas officials to defend a law requiring that interpreters for people who aren’t proficient in the English or Spanish ballots provided live in the districts where they interpret.
The findings of intent are important, especially since as my colleague Matt Ford notes, their existence essentially invalidates the entire reason the Supreme Court struck down the existing preclearance formulation. Also, after the Shelby County v. Holder decision, under the Voting Rights Act’s “bail-in,” federal courts and the Department of Justice can still require states or districts to abide by their preclearance requirements if their voting laws show discriminatory intent. Since the Sessions-led Justice Department seems now unlikely to make such a requirement, federal courts are free to consider that intent in future decisions that may restrict Texas’s freedom to write its own voting laws.
That’s where it gets tricky, because right now it’s unlikely that any of these rulings is final. In yesterdays’s state district case decision, dissenting Judge Jerry Smith said that people should “stay tuned” for an appeal on the case, which could still go to trial before the 2018 elections. The congressional district ruling also seems headed in the same direction, and the voter-ID case will probably advance through the Fifth Circuit. It’s within the realm of possibility for all three cases to reach a full-strength Supreme Court before the 2018 midterm elections, which would add them to a string of voter discrimination cases emanating from post-Shelby County legislation now reaching the nation’s highest court.
What might happen next is anybody’s guess. With conservative Justice Neil Gorsuch on the bench, and with a raft of new issues before the Court, like partisan gerrymandering in Wisconsin, it’s possible that will be an entirely new understanding of the Voting Rights Act by next November. The New York Times reports today that the Wisconsin case is heading to the Supreme Court, and could be consolidated with a number of other gerrymandering cases, including those in North Carolina and Maryland. While other issues dominate the political headlines today, the voting-rights cases currently percolating through federal courts, including those in Texas, are critical considerations for the next elections.