Democrats haven’t won an election to the state’s highest courts since 1994, but that record of futility could be broken as a little-noticed lawsuit heads to trial this week in a Corpus Christi federal court.
Filed on behalf of seven Latino voters and an organization founded by the late civil rights activist César Chávez, the lawsuit argues that statewide elections for seats on the Texas Supreme Court and Court of Criminal Appeals violate the Voting Rights Act by diluting Latino voting strength and denying Latinos the right to elect a candidate of their choice.
The lawsuit asks U.S. District Judge Nelva Gonzales Ramos — whose August decision invalidating the state’s voter ID law is on appeal — to order Texas to adopt single-member districts for both courts, creating at least two Latino-majority voting districts based in the Rio Grande Valley and West Texas.
“These elections are important. The decisions that come out of these two courts directly impact the Latino community,” said Jose Garza, one of the lawyers challenging the statewide voting. “And none of the people elected to these courts owe their election to the Latino community.”
Statewide elections, the lawsuit argues, have relegated Latinos to an ineffective electoral minority in almost every election to the nine-member courts.
“The at-large method of election functions to deprive (Latinos) — more than one-quarter of the state’s eligible voting age population — from electing judges of their choice to any of the 18 seats on the two courts,” the lawsuit said.
Because Latinos tend to support Democratic candidates, creating Latino-majority districts should vastly improve the party’s chances of placing judges on both all-Republican courts.
Lawyers for Texas Attorney General Ken Paxton, however, argue that the lack of Latino electoral success hinges on their preference for the party that is out of power, not discrimination.
In addition, Paxton’s lawyers told Ramos, Texans have been choosing the courts’ judges in statewide elections for almost 150 years — a process that supports the state’s interest in defining the structure of its government and promoting judicial accountability.
“Dividing the (courts) into single-member districts would create regional judges with smaller electoral bases and decreased accountability to voters across the state,” the state’s lawyers wrote.
Ramos, who was nominated to the bench by President Barack Obama in 2011, set aside up to six days for the trial, which will begin Monday morning and will focus largely on testimony from experts in election law, demographics and history.
A written opinion is expected several weeks or months after the trial ends, and however Ramos rules, the losing side will appeal, creating the potential for the U.S. Supreme Court to weigh in on the matter.
The first stop, however, will be the 5th U.S. Circuit Court of Appeals, which in 2015 upheld Ramos’ finding that the state’s voter ID law discriminated against minority voters. The appeals court is now weighing Ramos’ follow-up ruling that tossed out the law because she found that it had been drafted to intentionally discriminate.
Of the 38 states that elect judges to their highest courts, Texas and six others require candidates to run as members of a particular political party. Two of those seven states elect judges by districts — Louisiana and Illinois.
The lawsuit argues that Texas must be divided into judicial districts to satisfy Section 2 of the Voting Rights Act, which prohibits any practice or procedure that restricts voting rights “on account of race or color.” That includes, the lawsuit says, situations in which minority voters have less opportunity than other voters to elect candidates of their choice.
In court filings, those seeking single-member districts argued that Latinos are harmed by racially polarized voting in Texas — consistently preferring candidates who are defeated by the majority of white voters.
As a result, according to court filings:
• Since 2002, the state Supreme Court has had 17 white justices and three Latinos, while the Court of Criminal Appeals has had 12 white judges and one Latino. Since 1945, 7 percent of Supreme Court justices and 4 percent of Court of Criminal Appeals judges have been Latino.
• No Latino candidate has ever won election to either court without first being appointed by the governor.
• Candidates with Hispanic surnames tend to do poorly in the Republican primaries, with two incumbent Supreme Court justices defeated by white opponents — Xavier Rodriguez in 2002 and David Medina in 2012. Although there have been many more white justices, only one has been defeated in the GOP primary since 2002.
• Race also plays a role in Democratic primaries, with Latinos tending to support Latino candidates, while white voters have supported white candidates.
• In the general elections from 2002 to 2016, “the winning candidate was always supported by a majority of white voters and consistently opposed by a majority of Hispanic voters,” the filings said.
The lawsuit proposes two election schemes — having all nine members on both courts elected through regional districts, or creating eight districts, with the chief justice and presiding judge selected statewide.
Politics, not race
Paxton’s lawyers argue that voting is not racially polarized because election results are due to political party preference, not race.
Democratic candidates received 70 to 85 percent of the Latino vote and 30 to 40 percent of the non-Hispanic vote regardless of their race or the race of opposing candidates, Paxton’s lawyers told Ramos, adding that Hispanic candidates running as Republicans have won election to both courts.
“There is no evidence that Hispanic candidates or voters in Texas suffer any additional disadvantages beyond that shared by their fellow party members,” the state’s lawyers said.
Paxton spokesman Marc Rylander said Texas voters have elected diverse candidates to both courts, including Texas Supreme Court Justice Eva Guzman, a Republican who was re-elected in 2016 with almost 4.9 million votes, the most for any candidate in state history.
“The plaintiffs in this case cannot ultimately meet their heavy burden of proving that Texas’ time-honored method of electing judges and justices to these courts violates the Voting Rights Act, because it does not,” Rylander said.