Texas City’s Elections Under DOJ Oversight After Hispanic Discrimination Ruling

Early Voting 2016 - 1
Photo: Bob Price/Breitbart Texas

Pasadena, Texas, will be monitored by the Justice Department now that a federal judge has ruled that the City violated the Voting Rights Act by intentionally changing its city council districts to decrease Hispanic influence. The City, which the court ruled has a “long history of discrimination against minorities,” will have to get permission from the DOJ to make any changes in election policy going forward, otherwise known as pre-clearance.

The Mexican American Legal Defense and Educational Fund (MALDEF) filed the lawsuit on November 12, 2014 against the City of Pasadena, Mayor Johnny Isbell, and eight city council members. The five Hispanic plaintiffs were registered voters in the city.

The federal complaint alleged that the City had violated the Voting Rights Act of 1965, the Fourteenth and Fifteenth Amendments to the U.S. Constitution. The Hispanic plaintiffs sought a declaration by the court that “the hybrid election system for Pasadena City Council intentionally discriminates against them on the basis of race and national origin.” They also pled that the U.S. Census American Community Survey estimate for 2008-2012 found that the citizen voting age population was 43% Hispanic.

Representatives for MALDEF say that Latino registered voters in the city just south of Houston had grown in the last 16 years from 30.6 percent (2000) to 42 percent (2016).

The judge issued the 113-page opinion in January after a trial before the bench (no jury) in December.

During the trial, the plaintiffs put on evidence to support their argument that the City decided to get rid of two neighborhood districts of the existing eight, and replace them with at-large seats, in order to diminish Hispanic voting power and influence. The lawyers presented evidence that the City was positioned to have five of the eight single-member districts decided by Hispanic voters. The eight-district system had existed since 1992 and was previously approved by the DOJ. In all, there were 16 witnesses who testified, and 468 exhibits were admitted into evidence.

U.S. District Judge Lee H. Rosenthal wrote, “In short, Pasadena’s elections are racially polarized. The City’s 2013 racially polarized vote in favor of the 6–2 redistricting map and plan and the Council’s 2014 vote to approve the change were narrowly decided. The effect was to dilute Latino voting strength. That effect was foreseeable and foreseen.”

Judge Rosenthal continued on pages 103-04 of her opinion:

Based on the ample evidence of objective factors evidencing discriminatory intent—the intent to disproportionately and discriminatorily dilute Latino minority voting strength and acting in order to achieve that goal—the court has found, and now concludes, that the City violated the Fourteenth Amendment’s guarantee of equal protection by intentionally discriminating against Latinos and disproportionately diluting their voting power in changing to the 6–2 electoral map and plan to elect the Pasadena City Council.

The Judge found that the City of Pasadena is facing an impending election using a voting map that she ruled violates section 2 of the Voting Rights Act by intentionally discriminating against Latinos “by diluting their voting strength.” The City’s Charter requires amendments to be put to a citywide vote and there is no time to cure the “infirmities in the 6-2 map and plan” before the next election which is in May of 2017. Based on those facts, she ruled that the City would have to return to the eight-district system.

Judge Rosenthal concluded:

Because the court finds that Pasadena officials intentionally discriminated against Latinos in diluting their voting strength, the court grants the plaintiffs’ request under § 3(c) to require Pasadena to submit future changes to its electoral map and plan to the Department of Justice for preclearance. The court also grants the request for an order under § 3(c) to retain jurisdiction to review, before it is enforced, any ‘voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect’ from the map and plan in use in the May 2013 election. Any new City Council voting map or procedure may be enforced if it has first been submitted to the United States Attorney General and the Attorney General has not interposed an objection within 60 days after submission.

A 2013 U.S. Supreme Court case, Shelby County, Alabama v. Attorney General Holder, invalidated one of the provisions of the Voting Rights Act (section 4(b)) which determined the formula that decides which states and localities were subject to preclearance by the U.S. Department of Justice based on a history of discrimination. The 5-4 opinion was issued when conservative Justice Antonin Scalia was still alive.

Mayor Isbell and the city council voted on August 20, 2013, to implement the new system. Shelby County was decided on June 25, 2013. This served as an early case after the U.S. Supreme Court removed the federal Department of Justice’s preclearance power under Section 5 of the Voting Rights Act in many states, including the Lone Star State as a whole. The court found that the formula for coverage, dating back to the 1960s, was outdated and left the matter to Congress to decide which jurisdictions may still require federal oversight. Barring a legislative act, Section 3 of the Voting Rights Act allows a plaintiff to ask that a political jurisdiction be “bailed in” to a preclearance regime because of an act of voting discrimination, should a judge agree with the request.

Federal preclearance under the Voting Rights Act is an all-encompassing measure by which the DOJ requires prior approval for any change to election policy that a political jurisdiction may seek. Even the most seemingly mundane of changes, like moving a polling place across the street to a better facility, must be approved by DOJ attorneys in Washington.

“This decision shows that the Voting Rights Act is alive and well, contrary to the scare-mongering of some interest groups. When people claim that the Voting Rights Act was ‘gutted,’ the decision in the Pasadena case demonstrates they aren’t telling the truth,” J. Christian Adams of the Public Interest Legal Foundation told Breitbart Texas. Adams was a lawyer in the Department of Justice during the Bush administration.

MALDEF responded to the ruling saying, “The federal district court has soundly disabused Pasadena Mayor Johnny Isbell of his view that he can violate Latino voting rights and, as he put it, the ‘Department of Justice no longer can tell us what to do’,” said Nina Perales, MALDEF vice president of litigation and lead counsel for the plaintiffs. “A federal court has declared his actions illegal and unconstitutional, and placed Pasadena under federal supervision for future election changes.”

Because of the significance of the decision, the City of Pasadena is expected to appeal the ruling, and lawyers and political observers will continue to monitor its progress through the judicial system. The case would be filed at the U.S. Court of Appeals for the Fifth Circuit.

As reported by Breitbart Texas in late July, a similar voting rights lawsuit has been brought against the State of Texas, challenging the way the Supreme Court of Texas and the Court of Criminal Appeals is populated using at-large elections for each seat. The plaintiffs say the system discriminates against Latino voters and should be scrapped for a district-based system.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.

Voting Rights Act Case: City of Pasadena, Texas and MALDEF by lanashadwick on Scribd


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