Does Texas’ New Congressional Map Violate the Voting Rights Act?

By: Aaron Fisher

October 28, 2021

Texas’ new congressional map is likely headed to court over its underrepresentation of Latino voters. Because about half of Texas’ population growth since the 2010 census has come from Latinos, Democrats are likely to sue the state, arguing that state legislators are intentionally disenfranchising Latino voters with their new congressional map. And while Texas lies under the notably conservative Fifth Circuit Court of Appeals, plaintiffs might have a path forward under Section 2 of the Voting Rights Act.

With control of both houses of the state legislature and the governorship, Texas Republicans have full command over congressional redistricting in the state. And although Republicans made significant gains with Latino voters in the 2020 election, the group still leans Democratic, incentivizing the Texas legislature to try to minimize Latino voting power in the decade to come.

Currently, Texas has 36 congressional districts, but because of the state’s massive growth over the past ten years, it’s gaining two new seats for the 2020s. The state’s growth has overwhelmingly come from non-white voters; more than 95% of the population increase has been composed of non-white Texans. Yet Republicans in the state legislature have passed a congressional map for the next decade that does not add any new majority-minority districts, instead adding one new safe Democratic district in Travis County (Austin) and one new safe Republican district in Harris County (Houston), neither of which are majority-Latino.

The Houston, Austin, Dallas-Fort Worth, and San Antonio metro areas already have at least one district each that is majority-Latino (TX-29 in Houston, TX-35 in Austin, TX-33 in D.F.W., and TX-20 in San Antonio). But the new map does not add any new majority-Latino districts to account for the large minority population growth since 2010. Instead of diluting new Latino votes, Texas legislators should reverse course and create a new Latino-majority congressional district, most logically in the Dallas-Fort Worth area. If they don’t, they should expect litigation with the goal of compelling them to do so.

Section 2 of the Voting Rights Act of 1965 prohibits voting procedures that discriminate on the basis of race or language spoken. Congress amended the section in 1982 to clarify that any voting process that results in members of one of these groups’ right to vote being infringed upon—whether or not that was the intent of the requirement—is unlawful. To make this determination, the Supreme Court found in Thornburg v. Gingles that courts are to discern whether the “totality of circumstances” show that “the political processes leading to the nomination or election … are not equally open to participation by members of a [protected class] … in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” In such an inquiry, a court will weigh a number of factors, including the degree of racial polarization of the area’s voting history, to determine whether a protected group has lost political power through vote dilution in violation of Section 2.

The Supreme Court reaffirmed in Bartlett v. Strickland that for an electoral minority group to successfully argue that its ability to elect representatives of its choice is being infringed upon, the group must prove three factors: first, that it would be possible to draw a district in which it constitutes a majority of the population; second, that it is politically cohesive; and third, that the white population in the current district usually votes sufficiently as a bloc as to defeat the minority group’s preferred candidate.

Looking at the political geography of Texas and the new map, Latino plaintiffs in the Dallas area would have a strong case. The current TX-33, which stretches from Dallas to Fort Worth, has a majority-Latino population, but under the proposed new map, heavily Latino areas of Grand Prairie and Irving (two of the largest “mid-cities” between Dallas and Fort Worth) would be divided between two districts—TX-33 and TX-06—heavily diluting Latino residents’ voting power.

The new TX-06 snatches up many Latino voters who live in the old map’s TX-33. That new district stretches far south and east of the Dallas area, encompassing all or parts of seven predominantly rural, majority-white counties, each of which gave former President Trump between 66.3% and 80.3% of their vote in 2020, and ultimately giving the district a strong Republican lean. Despite movement towards the G.O.P. among some Latino voters in Texas last year, heavily Latino precincts in the Dallas-Fort Worth area still strongly favor Democratic candidates. The racial polarization of the new TX-06 bolsters an argument of intentional vote dilution under Section 2.

It’s true that in Texas, a majority-Latino district does not necessarily guarantee the election of a Democrat. For the past decade, Texas has been home to multiple congressional districts with Latino majorities that have consistently elected Republicans, including current representatives Michael Cloud in TX-27 and Tony Gonzales in TX-23. According to analyst Dave Wasserman, in the new congressional map, TX-15, in the Rio Grande Valley, is 81% Latino, but voted for Donald Trump by three points in the 2020 presidential election.

Yet these voting patterns are not uniform; rural Latino Texans—including in the Rio Grande Valley—are more likely to vote Republican than their urban or suburban counterparts. And while voters in many heavily Latino areas swung towards Republicans in 2020, these swings were much more dramatic in South Texas than in the major metro areas. Therefore, because any majority-minority district in the Dallas or Houston areas would likely lean Democratic, Texas Republicans are still hesitant to add a second Latino-majority district to either of those metros. Instead, Republican mapmakers prefer to dilute Latino votes by “cracking” their communities, spreading them across multiple congressional districts. Asian communities in the Dallas, Houston, and Austin areas face similar vote dilution this redistricting cycle.

Because of this polarized electoral history, combined with the hyper-partisan nature of redistricting, a lawsuit challenging the new Texas congressional districts will likely be filed by Democrats. And because the Fifth Circuit leans strongly conservative, any such lawsuit will face strong headwinds. Yet, if courts fairly apply Section 2 of the Voting Rights Act as interpreted by the Supreme Court in Gingles and Bartlett—that is, if they do not cave to partisan schemes and demands—they will likely reach the conclusion that the new Texas congressional map unconstitutionally dilutes minority voting power.

Aaron Fisher, J.D. Class of 2023, New York University School of Law

Suggested Citation: Aaron Fisher, Does Texas’ new congressional map violate the Voting Rights Act?, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2021).