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Asian American Legal Defense and Education Fund

Redistricting litigation update

Reform Austin shows that the state’s legal defense strategy against the various redistricting lawsuits is “You can’t sue us!”

Because of the clear racial gerrymandering, multiple groups are launching legal challenges under the Voting Rights Act. The state has now responded to the one being brought by the League of United Latin American Citizens (LULAC), Mi Familia Vota, the Mexican American Bar Association, and others, asking for a dismissal. Among many other claims, the state alleges that private citizens do not have standing to sue under Section 2 of the Voting Rights Act.

“The Supreme Court has never decided whether Section 2 contains an implied private cause of action,” reads the filing.

Section 2 of the Voting Rights Act makes it illegal to gerrymander a district for the purpose of suppressing voting power based on race. Strictly political gerrymandering was deemed acceptable in a 2019 Supreme Court case, but the two intentions are often intermingled. The majority of minorities tend to vote Democrat, making any political gerrymandering also racial almost by definition.

The filing by the state does admit that some legal opinions have implied that Section 2 does give private citizens standing to sue but says that these implications are inconsistent with other Supreme Court decisions. The case specifically cited is Alexander vs. Sandoval, which found that regulations enacted under the Civil Rights Act of 1964 did not confer the right to legal action in a case of non-intentional discrimination. The filing also claims that the Voting Rights Act did not actually create a right to vote in spite of the discrimination, and therefor there is no right to be contested under its statute.

Not a whole lot to say here, as Texas has employed a variation on that strategy in a whole host of lawsuit defenses lately. I don’t know what the district and appeals courts will make of that, but I wouldn’t be surprised to see it get a warm welcome at SCOTUS. Hey, have I mentioned lately that a new and updated federal voting rights law would be a good idea? Just checking.

Reading that article made me go Google news hunting for anything else I could find on redistricting litigation, since not all developments make their way into the sources I read regularly. In doing so I found that all but one of the existing federal cases against the redistricting maps have been consolidated into one, the LULAC v Texas case, as it was the first one filed. You can see all of the filings related to this omnibus case here. When I read the order combining the cases, the motion for which had been partially opposed, I learned that there were two other lawsuits that I had missed the first time around. Let me sum up here. The cases that I knew about that are now under this banner: The LULAC/MALDEF suit, the Voto Latino suit, the federal MALC suit, the Senator Powell lawsuit over SD10, and the Fair Maps Texas Action Committee lawsuit.

The cases that I missed the first time around: The Lawyers’ Committee for Civil Rights Under Law, representing the Texas State Conference of the NAACP, and Damon James Wilson, formerly an inmate in Dallas County, representing himself as he was counted in one Congressional district while incarcerated but intends to return to his actual domicile in another CD when released, and says he should have been counted in that district.

The one federal case that remains separate from the others is the Gutierrez/Eckhardt suit, which the court rejected for consolidation on the grounds that about whether the Lege was allowed to draw maps at all, and not about the composition of the new maps.

So, for those of you keeping score at home, we now have two federal lawsuits challenging different aspects of Texas redistricting, and one state lawsuit that focuses on the county line rule and how it was allegedly violated in Cameron County in the drawing on HDs 35 and 37. You’ll be quizzed on this at a later date, so please make sure you take good notes.

ACLU and others sue over new redistricting maps

The count is now seven.

Civil rights groups filed a federal lawsuit Tuesday challenging new Texas state legislative and congressional district plans as unconstitutional racial gerrymanders violating both the Voting Rights Act and the U.S. Constitution. The suit details an inadequate redistricting process that lacked transparency and led to discriminatory voting maps that dilute the political power of communities of color, particularly Black, Latino, and Asian American & Pacific Islander (AAPI) voters.

The Southern Coalition for Social Justice (SCSJ), the American Civil Liberties Union (ACLU) of Texas, and the Asian American Legal Defense and Education Fund (AALDEF), brought the case on behalf of the Fair Maps Texas Action Committee, OCA-Greater Houston, the North Texas Chapter of the Asian Pacific Islander Americans Public Affairs Association, Emgage and 13 individual plaintiffs in the United States District Court for the Western District of Texas, Austin Division.

“Texas’ latest gerrymanders seek to blunt the rightful political power of fast-growing populations of Latino, Black and Asian American and Pacific Islanders voters by carving up the chance to elect their preferred candidates to the United States Congress, the Texas House of Representatives, and the Texas Senate,” Allison Riggs, Co-Executive Director and Chief Counsel for Voting Rights with SCSJ. “This intentional discrimination of voters of color in clear violation of the VRA and U.S. Constitution cannot stand.”

The Fair Maps Texas Action Committee includes the ACLU of Texas, Clean Elections Texas, League of Women Voters of Texas, Our Vote Texas, National Council of Jewish Women-Greater Dallas Section, Texans Against Gerrymandering, and Common Cause Texas.

“Today, the Fair Maps Texas Action Committee is honored to join our partners from across the state to challenge the unconstitutional district maps recently passed by the State of Texas. Lawmakers have willfully ignored the rich diversity of our growing state and have instead chosen to draw maps that discriminate against voters of color,” said organizations from the Fair Maps Texas Action Committee in a joint statement today. “From the very start of this legislative process, we worked to bring diverse people together so that all marginalized communities receive fair representation. Despite our best efforts to advocate for a fair and open redistricting process, the politicians in charge chose to shut the public out in order to force through blatantly gerrymandered maps. Now, we will take action together to challenge these unlawful maps because our democracy is threatened.”

[…]

The complaint specifically seeks to remedy discriminatory districts in many of Texas’ fastest-growing cities and suburban areas, where the political power of communities of color is exploited to the benefit of more conservative white areas. For example, the lawsuit identifies how Texas’ state House maps unfairly crack AAPI voters in Fort Bend and Collin counties among multiple districts, while House Districts 54 and 55 in Bell County brazenly split the city of Killeen, where 40% of residents are Black. The complaint also focuses on state Senate and congressional maps where new districts in the Dallas-Fort Worth and Houston metros intentionally divide AAPI, Black, and Latino voters. The suit also points out that Texas’ congressional maps create two new majority-white districts in a state where 95% of population growth stems from communities of color.

That’s from the ACLU press release. I’d gotten an email with a notice of the video conference they had about this on Tuesday, but as of Wednesday the only news story I saw about this was this one in Newsweek. Sometimes these things take a couple of days for that. Anyway, you can see a copy of the complaint here. It is limited to Congress and the two legislative chambers, so no claims about the SBOE.

The other litigation so far includes the Gutierrez/Eckhardt suit, the LULAC/MALDEF suit, the Voto Latino suit, the two MALC suits, and most recently the Senator Powell lawsuit over SD10. All but one of the MALC lawsuits, which is specifically about State House districts in Cameron County and alleges a violation of the county rule, are in federal court. I believe this is the first one to include a focus on Asian-American voters, but I’d have to go back and take a closer look at the other complaints. Beyond that, I would be really excited to have an attorney who has some familiarity with the law in this area take a look at all these actions and tell me how they are different and whether any of it matters as far as the courts are concerned. Until then, this is what we know. Reform Austin, which also rounds up all the lawsuits, has more.

Fifth Circuit to hear AALDEF lawsuit appeal

This happens today.

Amid last-minute efforts to overhaul the state’s voter identification law in light of an ongoing legal fight, the Texas Legislature gaveled out without addressing another embattled election law that’s now moving forward in federal court.

The U.S. 5th Circuit Court of Appeals on Thursday will take up a legal challenge to an obscure provision in the Texas Election Code that requires interpreters helping someone cast a ballot to also be registered to vote in the same county in which they are providing help.

That state law has been on hold since last year after a federal district judge ruled it violated the federal Voting Rights Act under which any voter who needs assistance because of visual impairments, disabilities or literacy skills can be helped in casting a ballot by the person of their choice, as long as it’s not their employer or a union leader.

“There’s nothing that’s being imposed. The state just needs to get out of the way,” said Jerry Vattamala, director of the Asian American Legal Defense and Education Fund’s democracy program.

[…]

“I don’t see how we could in legislative action place a criteria that would limit it more than a constitutional standard,” said state Sen. Sylvia Garcia, D-Houston, who filed one of the measures during this year’s regular legislative session that would’ve only left in place the assistor provision. “I just don’t think the state is serious about the right to vote or access to the election box. We just seem to bend over backwards to place barriers instead of working to increase voter turnout.”

Her legislation to bring the state in line with federal law languished in the Senate State Affairs Committee after colleagues raised concerns that it would allow voters to obtain help at the polls from noncitizens, Garcia said. The voter registration requirement by default requires the interpreter to be a U.S. citizen and 18 years old.

But sometimes voters ask their minor children to help them cast their ballots, Democratic state Rep. Ramon Romero of Fort Worth told the House Elections Committee during an April hearing. His proposal was similar to Garcia’s and also did not advance out of committee.

Despite the intricacies between interpreters and assistors, the case could ultimately come down to a question of standing if the state has its way.

See here, here, and here for the background. There was a simple legislative fix to what really shouldn’t have been a problem in the first place – the state even admitted that the Williamson County election officials who created the fuss in the first place acted incorrectly – but nothing got done. The state is now claiming that the plaintiffs lack standing to pursue this litigation as the original voter has passed away, and I have a sinking feeling that if the Fifth Circuit doesn’t buy that argument, SCOTUS might. We’ll just have to see.

Texas loses another voting rights lawsuit

Good.

A federal judge Friday blocked Texas from enforcing a state law that limits the availability of interpreters in polling places, ruling that it violates protections guaranteed by the U.S. Voting Rights Act.

The ruling by U.S. District Judge Robert Pitman of Austin came in a lawsuit filed on behalf of Mallika Das, who was born in India and who, in October 2014, brought her son into a Round Rock polling station to act as an interpreter because she had limited proficiency in English.

Officials at the Williamson County polling station, however, barred Saurabh Das from helping his mother, relying on a state election law that requires interpreters to be registered to vote in the same county as the person they intend to help.

Because Saurabh Das was registered in Travis County, his mother had to vote without his help.

In a summary judgment relying on briefs and a hearing held Monday, Pitman ruled that the residency requirement violated Section 208 of the Voting Rights Act, which guarantees voters the right to be helped by a person of their choice if they need assistance because of blindness, disability or inability to read or write.

To enjoy the same opportunity to vote as other citizens, Pitman wrote, limited-language voters must be able to navigate polling stations and communicate with election officers.

“They must be able to understand and fill out any required forms, and to understand and to answer any questions directed at them by election officers. And they must be able to do so with the assistance of a person whom they trust,” the judge added.

In addition to voiding the law on interpreters at the ballot box, Pitman gave state lawyers seven days to provide him with “additional remedies” needed to protect the rights of limited-language voters. Lawyers for Das will have another seven days to respond to the state’s suggestions.

See here for the background. I can’t find much coverage of this, nor even as much as a press release from the Organization of Chinese Americans-Greater Houston or Asian American Legal Defense and Education Fund, who filed the lawsuit. As such, I can’t tell you anything more than what this story says. We know that the Lege passed a bill in 2013 by wide margins that would have addressed this issue, but Rick Perry vetoed it. A bad decision on his part, one of many he made over his too-long career. I’ll keep my eyes open for more information about those “additional remedies” the state is on the hook to provide.

UPDATE: Here’s the AALDEF statement.

Another Voting Rights Act lawsuit filed

Naturally, it originates in Texas.

Today, on the 50th anniversary of the signing of the Voting Rights Act, the Asian American Legal Defense and Education Fund (AALDEF) sued the State of Texas, the Williamson County Elections Department, and the city of Round Rock for denying Asian American voters with limited English proficiency the right to an assistor of their choice, in violation of Section 208 of the federal Voting Rights Act (VRA). Section 208 provides that voters may choose anyone to assist them at the poll site, except their employer or union representative.

Jerry Vattamala, Director of AALDEF’s Democracy Program, said: “Asian Americans have had to overcome many barriers to exercise their right to vote, especially due to the lack of language assistance. Texas must comply with all provisions of the Voting Rights Act and allow voters to secure assistance from persons of their choice.”

Asian American voters benefit from section 208 because most jurisdictions in Texas are not required to provide Asian language interpreters. This provision allows limited English proficient (LEP) voters to be assisted by their friends or family members inside the voting booth.

AALDEF’s lawsuit challenges a provision of the Texas Election Code that requires interpreters to be registered to vote in the same county as the voter who needs assistance. This state requirement unduly restricts the range of individuals who are permitted to provide language assistance under Section 208.

Mallika Das, one of the plaintiffs, is a registered voter who lives in Williamson County, Texas. She brought her son, Saurabh Das, to assist her during the early voting period for the Midterm Elections on October 31, 2014. Poll workers did not allow Saurabh to assist his mother because he was registered to vote in neighboring Travis County. As a result, Mrs. Das had to vote without language assistance from the person she had designated.

On behalf of the organizational plaintiff, OCA – Greater Houston president Cecil Fong said, “Section 208 is vitally important for the LEP Asian American community in Texas. The state law conflicts with the VRA and prevents qualified voters from receiving the assistance that they are guaranteed under federal law.”

The complaint seeks to enjoin Texas from continuing to attach unlawful requirements to interpreters, declare the Texas state law invalid, and ensure that Section 208 of the Voting Rights Act is properly enforced.

Fish & Richardson P.C., is pro bono counsel in this lawsuit. “Ensuring that all citizens have not only the right, but also the practical ability, to exercise their voting franchise helps our nation more fully realize the promise of our democratic system,” said Lawrence Kolodney, Chair of Fish’s Pro Bono Program. “Fish is proud to serve as co-counsel with the Asian American Legal Defense and Education Fund on this important and timely issue.”

I found this on Glen Maxey’s Facebook page, then found the link to the press release on the AALDEF Twitter feed, which has been commemorating the 50th anniversary of the VRA; here’s an article for the New York Law Journal that’s worth perusing. A copy of the lawsuit itself is here, and it’s pretty straightforward, as described in the press release. Maxey notes that two sessions ago he helped pass a bill allowing language minorities to bring an interpreter of their choice to the polls, thus bringing Texas into compliance with this part of the VRA, but then-Governor Perry vetoed it. The same bill was filed again this past session, but it didn’t go anywhere, and so here we are. I’ll keep an eye out for this.

Please count everyone

U.S. Census Bureau Director Robert Groves was in Laredo on Monday trying to ease some anxiety among residents there about the upcoming Census.

Border counties, flush with residents fearful of being turned over to immigration agents, are historically among the most undercounted. The Census Bureau ranks Webb County — where Laredo is located — among the nation’s hardest-to-count areas, joining a list that includes more rural places in Alaska and South Dakota.

Speaking to about a dozen colonia residents, many of whom only speak Spanish, Groves tried to allay their fears. He stressed that census data will be kept confidential and not turned over to other agencies.

“If the president asked me for your census form, I can say ‘No, you can’t get it,'” Groves told the crowd. “If I violate that law, I can go to prison.”

Groves visited the colonia with Democratic U.S. Rep. Henry Cuellar, who said his district, which includes Laredo, lost more than $55 million in federal dollars during the last census because of undercounting.

An estimated 373,000 people in Texas weren’t counted in the 2000 census. Cuellar said Texas could pick up as many as four congressional seats if every household is properly counted.

There are many bumps in the road, and it’s not just with Latino communities.

The Census Bureau is printing instruction guides and sample forms in dozens of different languages for use in community help centers, since one in five residents speak a language other than English at home. But there have been errors due to poor translations, including material for Vietnamese speakers that describe the census as a “government investigation.”

The agency was able to correct its Web material two weeks ago after groups pointed out the problem, but it’s too late to fix the paper forms, according to the report. There are more than 1.1 million Vietnamese in the U.S., mostly clustered in California and Texas.

Other gaps included a lack of specialists for the Bangladeshi community in Detroit; the nation’s third largest Korean-American population in Chicago; and the south Asian and Cambodian groups in Philadelphia and Rhode Island. In Virginia, when groups cited a need for census specialists for their Korean and Vietnamese communities, the agency responded by hiring someone who spoke Chinese.

Responding, the Census Bureau has emphasized it is devoting a large amount of its $133 million ad campaign to racial and ethnic audiences, including television spots in 28 different languages. It also worked with more than 150,000 business and community groups, hoping to build trust in its message that filling out the 10-question census form is safe and easy to complete.

Those stories were based on a report released by the Asian American Legal Defense and Education Fund. You can read their press release here and their full report, which is summarized in that release, here (PDF). They express hope that it’s not too late to fix some of these problems. I sure hope they’re right about that.