CORPUS CHRISTI, Texas (CN) – There are only two Latinos out of 18 judges on Texas’ highest courts, and a federal trial that started Monday will examine voters’ claims that the state’s electoral system for these courts dilutes the Latino vote.
La Union Del Pueblo Entero, or LUPE, a nonprofit founded by the late migrant-rights activist Cesar Chavez, claims the election system for the Texas Supreme Court and Texas Court of Criminal Appeals is rigged against Latinos.
Joined by seven Latino Texans, LUPE sued Texas in July 2016, alleging the state’s at-large system for electing judges for these courts dilutes the Latino vote in violation of the Voting Rights Act. LUPE is represented by the Lawyers Committee for Civil Rights Under Law, a nonpartisan Washington, D.C. nonprofit, and Texas RioGrande Legal Aid.
LUPE overcame Texas’ arguments that it lacks standing by citing some startling statistics about the history of Hispanic judges on the courts.
“Since 1945, only five of the 76 justices to serve on the Supreme Court, a mere 6.6 percent, were Latino. During the same period, 69 of those 76 justices, or 89.5 percent, were white,” LUPE said in its first amended complaint, filed in September 2016. “Since 1945, only two of the 48 judges to serve on the Court of Criminal Appeals, or 4.2 percent, were Latino. During the same period, 44 of those 48 judges, or 91.7 percent, were white.”
When a vacancy comes up on either court, the governor appoints a replacement, who serves until the next general election and can then run for the seat.
“No Latino candidate has ever won election to either court without first being appointed by the governor,” the amended complaint states.
Each of the appellate courts has just one Hispanic judge, both Republican women. Judges on the courts serve staggered six-year terms.
Texas Supreme Court Judge Eva Guzman’s term ends in 2022, while Court of Criminal Appeals Judge Elsa Alcala’s term expires this year and she has decided not to run for re-election.
LUPE claims that because there are more white Texans of voting age than their Hispanic counterparts, and whites tend to vote as a bloc, Hispanics’ chosen candidate is rarely elected to the courts.
The advocacy group suggests a solution in the complaint: carving out at least two single-member districts in the Hispanic-majority regions of South and West Texas.
Single-member districts are set by geographical boundaries, so only voters living within them can vote for the candidates. At-large districts don’t have those boundaries, so candidates are elected by statewide votes.
But Texas argues that its statewide judicial elections are being decided along partisan political lines, not racial lines.
Republicans dominate elections in Texas, perhaps more so than in any other U.S. state. Democrats have not won a statewide race in Texas since 1994.
The party affiliation of the 18 judges on the high courts appears to back Texas’ claims: All of them are Republican.
Besides that, Texas says, history and precedent is on its side.
In a pretrial brief filed early Monday, Texas cited the en banc Fifth Circuit’s 1993 ruling in LULAC v. Clements, in which a majority of the appellate court’s judges rejected a challenge to Texas’ process for selecting judges through countywide elections.
In that case, the League of United Latin American Citizens claimed that judicial candidates preferred by minorities in the state’s nine most populous counties nearly always lost because countywide elections diluted the voting power of Hispanics and blacks, and whites tended to vote as a bloc for white candidates.
But the data did not back LULAC’s claims, Texas says in its pretrial motion.
“In LULAC, the data showed that white voters supported minority candidates at similar levels to their support for white candidates of the same party—even when the minority candidate was opposed by a white candidate,” the brief states.
Texas says the Fifth Circuit’s LULAC decision also vindicated Texas’ tradition, dating to 1850, of holding statewide elections for judicial positions with statewide jurisdiction, a system that Texas calls “linkage” in its brief.
“The court explained that linkage ensures ‘judges remain accountable to the range of people within their jurisdiction’…The court remarked that a broad electoral base ‘diminishes the semblance of bias and favoritism towards the parochial interests of a narrow constituency,” Texas argues, citing the LULAC decision.
The majority in the LULAC case further stated that a lack of qualified minority judicial candidates partly explained the dearth of minority judges.
In its brief, Texas urged U.S. District Judge Nelva Gonzales Ramos to analyze whether the same issue has resulted in Latinos being underrepresented on the high courts today.
“Plaintiffs’ data shows that Hispanic votes in Texas’s statewide judicial elections are not being diluted on account of race or color. Voting in general elections may be polarized, but it is polarized on account of political party,” Texas’ brief states.
Despite Texas’ arguments, there is more recent precedent that could bolster LUPE’s claims.
U.S. District Judge Lee Rosenthal, chief judge of the Southern District of Texas, ruled in January 2017 that the city of Pasadena’s white mayor had spearheaded a redistricting plan to dilute the Latino vote and prevent Latinos from electing their preferred City Council candidates, in violation of the Voting Rights Act.
She ordered the Houston suburb to get rid of two at-large districts, which she found worked against Latino candidates and voters, and revert to eight single-member voting districts. The Fifth Circuit upheld her ruling the next month.
Judge Gonzales Ramos may not make a decision in the case for several months after the trial ends, and whichever side loses will likely appeal to the Fifth Circuit in New Orleans, and possibly to the U.S. Supreme Court.