The State of Texas this week filed a rather impolite response to the voting-rights concerns recently expressed by Attorney General Eric Holder. Last month, Holder announced that the Justice Department would deploy a little-used section of the Voting Rights Act to impose federal oversight on some jurisdictions that had been freed, courtesy of a 5-4 conservative majority of the U.S. Supreme Court, from having to "preclear" changes to voting rights (and redistricted election maps) with either a federal court or the Justice Department.
Texas is precisely the kind of jurisdiction the Justice Department had in mind. In 2011, Republicans in the state legislature produced redistricting maps that, according to the federal court, had been designed with “discriminatory purpose.” The result was a significant dilution of Hispanic voting power.
In a response filed with a three-judge panel in San Antonio, State Attorney General (and Republican gubernatorial candidate) Greg Abbott more or less told the Justice Department what it could do with a Texas longhorn.
The most interesting part of the state's 46-page kiss-off, which I was alerted to by Rick Hasen's terrific election law blog, is this passage:
DOJ's accusations of racial discrimination are baseless. In 2011, both houses of the Texas Legislature were controlled by large Republican majorities, and their redistricting decisions were designed to increase the Republican Party's electoral prospects at the expense of the Democrats. . . . The redistricting decisions of which DOJ complains were motivated by partisan rather than racial considerations, and the plaintiffs and DOJ have zero evidence to prove the contrary.
Wow. So the state defends itself from the charge that it has targeted minorities and tried to reduce their power by saying outright that it has instead targeted Democrats and tried to reduce their power.
That, of course, is what gerrymandering is all about, albeit usually not so brazenly. Democrats play the old game, too. But the state's response gets right to the nub of an issue unique to Republicans: Republicans are generally white, while their political opponents are white, black and brown. In a highly diverse state such as Texas, it's probably impossible for Republicans to target Democrats without targeting minorities. In fact, as they state in the court filing, they target Democrats by targeting minorities.
So, here's the question the federal courts must decide: When the white party uses its legislative authority to undermine the brown and black party, is that a racial act or merely a political one?
(Francis Wilkinson is a member of the Bloomberg View editorial board. Follow him on Twitter.)