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SCOTUS Rejects Texas Republicans’ Efforts to Avoid Questioning Under Oath About Alleged Discrimination in Redistricting Lawsuit

A view of the U.S. Supreme Court through security fencing on May 31, 2022 in Washington, D.C. (Photo by Drew Angerer/Getty Images.)

A view of the U.S. Supreme Court through security fencing on May 31, 2022 in Washington, D.C.

Three Republican state legislators are set to be subpoenaed in a redistricting lawsuit after the U.S. Supreme Court on Tuesday denied their emergency request to stay a series of depositions ordered by a district court in West Texas earlier this year.

The underlying legal challenge is actually a series of lawsuits filed by dozens of voters, voting rights groups, and other organizations broadly operating under the banner of the Texas Latino Redistricting Task Force as well as a legal action by the U.S. Department of Justice. Overall, the various litigants and their cases have been consolidated into district court proceedings in the Western District of Texas.

The lawsuits allege that Texas’s 2021 congressional and state redistricting plans violate Section 2 of the Voting Rights Act as well as the 14th and 15th Amendments to the U.S. Constitution because they intentionally discriminate against and dilute minority voting strength in order to shore up the GOP’s electoral fortunes.

Specifically, the lawsuits argue that Texas was required to create more majority-minority districts than it did during the 2021 redistricting process and that the resulting number of such districts is woefully disproportionate to the number of such Black, Latino and Asian voters that reside in the Lone Star State on the whole.

The first lawsuit by the League of United Latin American Citizens alleges that the plans “discriminate against Latino voters statewide, and in specific districts by intentionally manipulating district boundaries to reduce Latino voting strength.” This is done, the plaintiffs contend, by “overpopulating Latino majority districts and underpopulating Anglo majority districts to avoid drawing new Latino majority districts.”

The filing by the DOJ contained similar allegations:

Between 2010 and 2020, Texas grew by nearly 4 million residents, and the minority population represents 95% of that growth.

Soon after the release of 2020 Census data, the Texas Legislature enacted redistricting plans for the Texas Congressional delegation and the Texas House through an extraordinarily rapid and opaque legislative process.

The Legislature refused to recognize the State’s growing minority electorate. Although the Texas Congressional delegation expanded from 36 to 38 seats, Texas designed the two new seats to have Anglo voting majorities. Texas also intentionally eliminated a Latino electoral opportunity in Congressional District 23, a West Texas district where courts had identified Voting Rights Act violations during the previous two redistricting cycles. It failed to draw a seat encompassing the growing Latino electorate in Harris County. And it surgically excised minority communities from the core of the Dallas-Fort Worth Metroplex (DFW) by attaching them to heavily Anglo rural counties, some more than a hundred miles away, placing them in a congressional district where they would lack equal electoral opportunity.

“By cracking minority communities and submerging urban minority voters among rural Anglos, the Congressional map effectively turns back a decade of rapid Latino population growth and preserves Anglo control of most remaining districts,” the DOJ filing continues.

In sum, while white people in Texas now make up less than 40 percent of the population, they now control over 60 percent of the state’s federal congressional districts outright, the lawsuits assert. The plaintiffs allege that white voters will be able to easily elect the candidate of their choice in such districts and likely many more. Conversely, they allege, non-white voters have had their communities both broken apart and stacked on top of one another in order to frustrate their own “cohesive” voting trends and overall sap non-white voting strength across the state.

The Texas Tribune explained the upshot of the new redistricting plans: “People of color accounted for 95% of the state’s growth over the last decade, but in the new map there’s one less Hispanic majority district and zero districts with a Black majority.”

In their own lawsuit, the NAACP alleged that though one Black and one Latino representative, along with eight white lawmakers, were placed on the committee to hammer out differences between the various plans that ultimately became law, “the only members of color on the Conference Committee were not privy to the Committee’s discussions and had not even seen what was going to be in the final Conference Committee Report.”

There are currently ten separate complaints consolidated into the overall legal case against various Texas defendants.

The sheer size of the litigation has necessitated numerous depositions to conduct discovery and obtain evidence. Three Republicans challenged the plaintiffs’ requests to examine their motives and ask questions about them under oath.

They lost at the district court that is overseeing the litigation, which ordered the depositions to go forward. They legislators then appealed to the U.S. Court of Appeals for the Fifth Circuit. A three-judge appellate panel dismissed the stay of that deposition order on both the merits and, in a concurrence, on jurisdictional grounds.

On May 21, 2022, in their emergency request to Justice Samuel Alito, Texas State Representatives Ryan Guillen, Brooks Landgraf, and John Lujan argued that they “were involuntarily subpoenaed as third parties in the consolidated district court actions.”

Their plea argues, at length:

The legislators are now under court order to answer every question posed to them irrespective of legislative privilege objections—even those that would be off-limits in nearly every court across the country. The legislators’ depositions will probe the very innerworkings of the legislative process, examining the legislators’ thoughts, impressions, and motivations for their legislative acts. Counsel may raise objections, but to what end? Little. Counsel cannot instruct legislators not to answer. Rather, the legislator must “answer the question in full.” At that point, the proverbial “cat is out of the bag.” And the twin safeguards of legislative immunity and privilege — older than the country itself — are no safeguards at all.

“[T]he probative value of any one legislator’s motivations or impressions is weak at best, while the affront to federalism and comity is at its zenith,” the emergency request argues later on.

On Tuesday, the nation’s high court dismissed the request without a word. No dissents or concurrences to the denial were recorded.

Law&Crime reached out to attorneys for both the voting rights groups plaintiffs who won and the state representative defendants who lost. No responses were immediately forthcoming at the time of publication.

[Photo by Drew Angerer/Getty Images.]

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