The 83rd Legislative Session ended on Monday. Normally I would be providing you with an update on all the action – good and bad – that took place this session, but Governor Perry has called us into a Special Session on an issue that could have a major impact on Texas elections and voting rights.
Governor Perry has called a special session on redistricting of Texas State House, State Senate and Congressional maps. Thus far, that is the only topic on the agenda, but few believe that will remain the case, and I expect several other divisive issues to be debated in the weeks ahead.
I hope you find this Express useful and informative.
One of Dr. King’s most enduring achievements was the passage of the Voting Rights Act in 1965, landmark legislation that outlawed discriminatory voting practices and upheld the principle of one person, one vote in this country. Under Section 5 of the Voting Rights Act, states with a past history of racial discrimination – like Texas — must get “preclearance” from the U.S. Department of Justice before implementing any laws that affect voting, including state redistricting plans establishing congressional, State House and Senate district boundaries.
Last year, the election maps drafted by the legislature were voided by federal courts because they violated the rights of minority voters under the Civil Rights Act. As a result, the temporary, interim maps used in 2012 elections for State House, State Senate and Congressional districts were drawn by the U.S. District Court in San Antonio. These maps, while better, also contained flaws that need to be addressed.
Governor Perry has called a special session on redistricting, but for the sole purpose of adopting – without any changes – the interim maps drafted by the courts, even though they include features that – in my and many legal experts’ view – continue to violate the U.S. Voting Rights Act.
So how did we get here? Every 10 years, state legislatures review new census data and redraw the districts of their elected representatives, from the State Board of Education to members of Congress. Texas continued to experience tremendous growth, and that meant our state added four new members of Congress, and dramatically changed State House and Senate districts.
African Americans and Hispanics accounted for over 90 percent of that growth, which should have meant additional seats for minority candidates. Unfortunately, the Republican-dominated legislature drew maps which ignored this growth and packed minority voters into fewer districts, weakening their voting strength while strengthening Anglo voting power in Texas.
For instance, of the four congressional districts created, only one real minority opportunity district was created, despite the fact that nearly all Texas’ growth is due to minority – predominantly Hispanic – growth. And that district was in North Texas, not Harris County.
It was even worse in state legislative races. Nearly 90 percent of Texas growth is due to growing minority population, yet we gained no new seats in House and Senate. Texas is now 54.1 percent minority – and growing – yet only one-third of Texas legislative seats are minority opportunity districts.
The numbers didn’t add up, so a three-judge federal court ruled that the State Senate, State House and congressional redistricting plans adopted by the Legislature violated Section 5 of the U.S. Voting Rights Act. Perhaps more importantly, the judges unanimously ruled that the state-passed Senate and congressional plans were drawn with a discriminatory purpose.
It is a sad and discomfiting fact that Texas is the only state in the country which adopted redistricting plans following the 2010 Census that have been ruled to be deliberately discriminatory to African-American and Latino voters. Other states covered under Section 5 of the Voting Rights Act, including Alabama, Georgia, Louisiana, Mississippi, South Carolina and Virginia, were able to adopt redistricting plans without deliberately discriminating against their minority citizens. In each instance these other covered states gained approval of their plans under the Voting Rights Act.
Of further concern, Attorney General Greg Abbott, on behalf of the Governor and our legislative leaders, is currently arguing before the U.S. Supreme Court that the state-passed discriminatory redistricting plans be reactivated and put in place for the 2014 elections. His briefs to the High Court include an explicit argument attacking Section 5 of the Voting Rights Act, the key provision protecting the minority voters we represent from exactly the type of discrimination contained within the state-passed maps.
While the interim Senate plan restored the ability of minority voters to elect their preferred candidate in Senate District 10 in North Texas, the same cannot be said of the interim State House and congressional plans. These interim plans continue many features of the state-passed maps that undermine the voting strength and voting rights of African American and Latino voters in Texas.
Further, data from the Texas Legislative Counsel regarding the Harris County region is telling. Senate District 13 contains a total minority population of over 90 percent. In District 6, the total minority population is nearly 88 percent. In District 15 minority residents make up nearly 72 percent of the population. In just these three districts, there are over two million minority residents, while there are barely over 400,000 Anglo residents.
Harris County contains nearly 1.7 million Latino residents and over 800,000 African American residents. African American plus Latino residents in Harris make up approximately 60 percent of the county population, while Anglos make up fewer than 33 percent. Adjacent Fort Bend County’s population is just 36 percent Anglo but nearly 50 percent African American plus Latino. It is apparent that the Senate Districts in the Harris County region are configured to concentrate the minority voters in as few districts as possible, thereby, undermining and diluting their actual voting strength.
The interim maps were never meant to be permanent, yet that is exactly what Governor Perry wants the legislature to do during this special session. I don’t think that is right and I don’t believe the federal courts will either.
By Jordan Smith
“What Would Michael Do?”
It was a week of long-overdue achievements by the Texas Senate. On April 11, the chamber unanimously passed Senate Bill 1611, the “Michael Morton Act,” by Sens. Rodney Ellis, D-Houston, and Robert Duncan, R-Lubbock, which mandates broadened open-file discovery in criminal cases to ensure the defense has access to police reports and witness statements – which in some jurisdictions prosecutors have withheld from defendants prior to trial. In order to protect witnesses, the measure would require defense attorneys to redact personal information from documents before sharing it with experts, investigators, or a defendant. The measure also reaffirms the state’s duty to provide so-called Brady material (from the landmark 1963 Brady v. Maryland) – exculpatory, mitigating, or impeachment materials held by the state. Getting the bill together, through committee, and passed on the Senate floor was no small feat: It was nearly dead on arrival in its first form, which would have required reciprocal discovery, with defense lawyers mandated to open their files to the state. That has been a loser of a proposition for years; defense lawyers in part argue that because they have no burden of proof – that rests solely with the state – they have no duty to share anything with prosecutors. After weeks of at times tense negotiations among stakeholders – the Texas District and County Attorneys Association, Texas Criminal Defense Lawyers Association, and Senate staffers (including the indefatigable Brandon Dudley, Ellis’ chief of staff and legal counsel) – the bill finally made it before the Senate Criminal Justice Committee and on to the Senate floor, where Morton was present for the historic vote.
Morton spent nearly a quarter-century behind bars for the 1986 murder of his wife Christine, which DNA testing ultimately proved he did not commit. At his trial, prosecutors withheld from his defense crucial evidence – including key parts of the police investigation that could have demonstrated that someone other than Morton was skulking near the couple’s home prior to Christine’s murder. In March, that person, Mark Alan Norwood, was convicted and sentenced to life for Christine’s murder. “I want to thank Michael Morton for using his life’s tragedy to make a difference to protect others, to make sure they wouldn’t end up in a similar predicament,” Ellis said Thursday from the Senate floor. “There were times when this bill fell apart, when I, quite frankly, was ready to walk away and work on something else, but I thought about [Sen. John] Whitmire’s comments when he said, ‘What would Michael do?'”
On April 6, the Whitmire-led Senate Criminal Justice Committee passed another key reform measure: SB 1292, also by Ellis – with Attorney General Greg Abbott’s blessing – that would require pretrial DNA testing in death penalty cases. The measure would ensure on the front end that the state is prosecuting the right person – taking death off the table in cases where the evidence simply isn’t there – and decrease the amount of post-conviction DNA testing that can take years, and lots of money, to litigate. – Jordan Smith
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