In federal trial, Galveston County challenged on efforts to undo Black and Latino voting power

A statue of a returning Confederate soldier on Thursday, April 21, 2022 in Galveston, TX. (Annie Mulligan For The Texas Tribune, Annie Mulligan For The Texas Tribune)

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GALVESTON — In the home of Juneteenth, the culmination of Galveston County’s decade-long effort to undermine the political power of Black and Latino voters is on trial.

In the only county-level redistricting case which the federal government has stepped into, this week saw the start of what is expected to be a drawn-out court hearing examining whether the county violated the federal Voting Rights Act and unconstitutionally used racial gerrymandering in 2021 when drawing commissioner court districts. The new maps ultimately reduced the voting strength of the coastal county’s residents of color.

The trial before Judge Jeffrey V. Brown, a Trump appointee who has given each side 40 hours to make their cases, opened to a packed courtroom in the federal courthouse on Galveston Island. It will focus on how the county capitalized on its first opportunity to redraw precincts without federal oversight to dismantle the sole commissioner precinct in which Black and Latino voters made up a majority of the electorate

It will trace how the court chopped up Precinct 3, where Black and Latino residents had been able to build political coalitions and select their representative on the court. In the redistricting cycle after the 2020 census, a district that sliced the middle of Galveston County down to the island, including diverse pockets of four cities where most of the county’s Black population lives, became a much smaller district limited to the northwestern end of the county that includes majority-white communities.

Black and Latino communities were split up so that white voters could make up at least 62% of the electorate in each of the four precincts. Because white voters in Galveston — like Texas generally — tend to support different candidates than Black and Latino voters, the new map effectively quashed their electoral power.

The new map doesn’t just leave Black and Latino voters with less opportunity to influence elections, it eliminates their influence altogether, said Sarah Xiyi Chen, an attorney with the Texas Civil Rights Project.

“At the end of the day, there is no meaningful dispute that for decades Galveston County’s Black and Latino community has been able to elect the candidate of their choice continuously and now under the challenged map, that community has zero opportunity,” Chen said in court. “You cannot get less opportunity than zero.”

Residents challenging the map, including claims of intentional discrimination, have been joined by three local branches of the NAACP, a local LULAC chapter and the U.S. Department of Justice, which found the commissioners court’s move to dismantle Precinct 3 so grievous that it stepped in four months after the map was adopted.

During opening arguments, the federal government pitched the case as a textbook case, falling squarely within the framework used to enforce a key section of the Voting Rights Act that the U.S. Supreme Court had recently reaffirmed.

Quoting from the high court’s June decision, DOJ attorney Catherine Meza said the court had “iterated the essence” of vote dilution claims, like the one they’ve raised against the county, as a certain electoral structure that minimizes or cancels out the votes of people of color.

“That is precisely what occurred here in Galveston County,” Meza said.

The case also offers a look back at another of the high court’s voting rights rulings — its 2013 decision to upend what was known as preclearance, a long-established protection that required changes to voting maps to clear federal reviews before taking effect.

That oversight had thwarted the commissioners court’s 2011 effort to similarly reconfigure Precinct 3, represented by court’s then-sole Black member, Stephen Holmes. When the U.S. Supreme Court overturned the preclearance requirement two years later, the majority Republican and white panel advanced a plan to reduce the number of justice of the peace and constable districts that was similar to one the U.S. Department of Justice had previously blocked as discriminatory.

During a contentious November 2021 meeting to approve the precinct map in question, Constable Derrick Rose held his tongue as the commissioners court — led by the same county judge from a decade before — finished the job.

Sitting at the witness stand in federal court this week, a gold constable badge clipped to the left breast pocket of his tan suit, Rose explained he hadn’t even bothered speaking at the boisterous meeting where resident after resident, most of them Black, spoke against the redistricting plan.

“They already had their minds made up when they came in there, and you could tell that,” Rose said.

That current redraw of Precinct 3 likely would have been blocked under preclearance. Without it, Rose was left to join his neighbors to fight what had felt inevitable when the county was freed from federal review.

Lawyers representing Galveston County’s Republican leadership likely won’t present their defense of the mapmaking until next week, but they’ve offered a glimpse into the range of their arguments.

During opening arguments, attorney Joseph Russo described the surgery on Precinct 3 as an effort, in part, to fix what the county believed was a gerrymandered district — though the federal government had signed off on it a decade before.

The previous version of Precinct 3 resulted from legal wrangling over the county’s 2011 redistricting work, which initially dropped the share of Black and Latino voters in the district. Now, freed from preclearance, the county couldn’t keep it, Russo argued.

Questioning the motivation of the Black and Latino voters challenging the map, Russo raised whether they were trying to “move the ring” after partisan politics did not work out for them.

“We’ll try this at the courthouse and deal with it there,” Russo said.

(Before the 2021 redistricting, Republicans already claimed a 4-1 majority on the commissioners court with Holmes, a Democrat, serving as the lone dissenter to its conservative majority.)

And Russo pushed back on complaints that the redistricting process had not allowed for meaningful public input, even though the commissioners court approved the map at the end of the only meeting at which the public could provide feedback.

The proposed map was placed on the commissioners court’s agenda on the last day the county could make changes before the March primary election. The November meeting was scheduled for the middle of a workday in a small room in an annex building instead of the larger county courthouse.

Many of the residents who packed the meeting were left in the hallway straining to follow the proceedings or hear their names when called to speak. When people complained they could not hear, County Judge Mark Henry tersely responded that the room did not have microphones and he wasn’t going to shout. When the crowd collectively scoffed at his remark, Henry — who is expected to testify in the case — threatened to clear them out if they made noise, warning he had constables in the room. At the meeting, the court did not address any of the public’s concerns, except to say there was no time to consider other proposals.

Russo said delayed census data forced a quick turnaround on the map. The data was not released until August and September and came in a format that wasn’t “really user friendly,” he said, even though Galveston County had hired a longtime GOP redistricting guru to help redraw its map. (Texas state lawmakers finished their legislative and congressional redistricting work in October.)

And he added that the commissioners court had not been warned about the turnout the November meeting would draw, including the pastors, local officials and longtime residents who took turns admonishing the court for dismantling Precinct 3 while leaving hardly any room for them to participate in the process.

“There was no anticipation of an overflow or need for a lot of community participation in the meeting,” Russo said. “Had they known that, they could’ve changed the meeting site. Nobody brought that to bear, including Commissioner Holmes. The notion that the county is somehow responsible for this is nonsensical.”

In the federal courtroom, lawyers representing residents challenging the maps said the county had been put on notice during the last round of redistricting and had an opportunity to “remediate the defects of their process.”

“Instead the evidence will show that they went through a public process that was worse not better and that the map that resulted from that process is likewise significantly worse than the map that failed to achieve preclearance in 2011,” said Simone Leeper, an attorney with the Campaign Legal Center.

With the redrawn map set to be used in a decade’s worth of elections, the stakes are high for the voters of color hoping for change. The judge’s ruling in the case is not expected for several months after the trial wraps up. His decision could still be appealed by the losing party, meaning there could very well be another election before the case is decided.

Moreover, the fight over Galveston County’s mapmaking could also serve as a test case of how much the federal courts are willing to tolerate in this round of redistricting if the county is allowed to keep a map that dismantled the sole “majority-minority” precinct and whether they will entertain ongoing efforts to weaken federal safeguards for voters of color.

In legal filings and in their opening arguments, Galveston County’s attorneys have dropped in challenges to legal precedent that allows voters to use the Voting Rights Act to protect coalition districts where politically cohesive racial groups combine their voting strength as they do in Galveston and in diverse suburban communities.

The county’s litigation team includes lawyers with the Public Interest Legal Foundation, a conservative legal group that has regularly challenged voter registrations and made false or unsupported claims about voter fraud. In a factsheet distributed to reporters at the Galveston County trial, the organization plainly argued that extending the VRA’s protections to include multiracial coalitions “would transform the law from protecting against race discrimination to protecting political coalitions.”

It’s an issue voting rights experts have warned could be a key fight in the litigation over the mapmaking from this redistricting cycle and one that could play out in future appeals of the Galveston case, possibly up to the Supreme Court, which has not yet weighed in on the issue.

And even though the Supreme Court recently rejected Republican arguments that the Voting Rights Act places too much emphasis on race, including a pitch for race-neutral tests, the county’s attorneys indicated they are hoping to wedge open the door to relitigate that as the case is appealed through the federal courts.

At the close of opening arguments, already hitting the court’s time limit, Russo briefly hinted they’d be making that case for a wholesale change of the VRA.

“The time for the need for race-based legislation is over,” he said.

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