Justices of the Texas Court of Criminal Appeals | Photo by Bob Daemmrich
A trial starting Monday in federal court will test Texas’ nearly 150-year-old system of statewide elections to the state’s two highest courts.
The list of voting rights challenges Texas is fighting in court lengthens this week with the beginning of a federal trial in a case challenging the way the state elects judges to its highest courts.
As part of a lawsuit filed on behalf of seven Latino voters and a civil rights organization, U.S. District Judge Nelva Gonzales Ramos of Corpus Christi will consider whether the statewide method of electing judges on the Texas Supreme Court and Court of Criminal Appeals dilutes the voting power of Texas Latinos and keeps them from electing their preferred candidates.
The lawsuit has largely flown under the radar since it was first filed in 2016, even as two other Texas legal fights over the disenfranchisement of voters of color through the drawing of the state’s political maps and voter identification requirements have wound through the courts. But this case comes with the potential to dismantle the state’s long-held — and long-disputed — system of statewide judicial elections to courts that serve as the final authorities on civil and criminal matters in Texas.
Texas has adhered to that controversial system for nearly 150 years, but up until now the highest-profile rebukes have had less to do with concerns about racially motivated voting suppression than with standards of judicial impartiality.
Some of the most heated criticism of the system has come from current and former justices, who argue that having to campaign as partisans can undermine their perceived judicial impartiality once they’re seated on the bench. Texas is one of 38 states that elect judges to its highest courts, but one of only seven that require members to run with a political party.
But those challenging the state’s electoral system in court this week will instead focus on convincing Ramos that Texas should adopt a single-member approach — similar to those employed by some city councils and school boards — that could allow for Latino-majority voting districts.
The judge has set aside six days for the trial, which starts Monday. A ruling isn’t expected for at least a few weeks, making it highly unlikely that Ramos’ decision will upend this year’s statewide judicial elections. The losing party will almost certainly appeal to the U.S. 5th Circuit Court of Appeals, where the case could be tied up for months or years.
What challengers argue
Plaintiffs’ lawyers will argue that the state’s current system for electing Supreme Court and Court of Criminal Appeals judges “submerges Latino voters” in a manner that violates Section 2 of the federal Voting Rights Act, which prohibits an electoral practice or procedure that discriminates against voters based on race.
“Latinos have been prevented from participating fully in the election of Texas’s high court judges because of the way those judges are elected,” plaintiffs’ lawyers wrote in their legal complaint to the court.
To prove that, they will call up voting rights experts who are expected to testify that racially polarized voting is a hallmark of the current system and results in the electoral preferences of Texas Latinos, who are a “politically cohesive” voting group, to be regularly trumped by a white majority.
Plaintiffs’ lawyers are also expected to point to the limited success of Latino candidates for both courts as proof that the current at-large method of electing judges “functions to deprive more than one-quarter of the State’s eligible voting age population from electing judges of their choice to any of the eighteen seats on the two courts.”
By calling up two Hispanic candidates who were unsuccessful in their statewide judicial campaigns, it’s likely they’ll also attempt to highlight a striking reality of statewide judicial elections in Texas: no Latino candidate has won election to either court without first being appointed by the governor.
Judges on the state’s high courts serve staggered six-year terms. There are only two Hispanics currently on the courts, but one of them is not running for re-election.
What the state argues
But the state of Texas has argued that the issue is partisan, not racial: Hispanic candidates lose because of party preferences, not because of disenfranchised voters.
“There is no evidence that Hispanic candidates or voters in Texas suffer any additional disadvantages beyond that shared by their fellow party members,” lawyers with the Texas attorney general’s office, which is representing the state in court, argued in a filing last month.
Rather, the state’s two highest courts have turned entirely to Republican hands in accordance with a statewide shift in partisan preference — Democrat-packed in the 1970s and 80s, with a turn to the right since the mid-1990s.
In Republican primaries, the state’s expert witnesses are expected to testify, Hispanic and non-Hispanic voters preferred the same candidate. And in Democratic primaries, race does not seem to be the determining factor, according to an analysis conducted by Texas’ expert.
Texas has also argued that the case should be dismissed because the federal court does not have jurisdiction to hear it; that the plaintiffs lack standing to bring the case; and that their complaint does not constitute a valid claim under Section 2 of the Voting Rights Act.
Even if the case were to move forward, the state has said, a federal court does not have the power to require a state to adopt a new system of electing judges.
Check back for updates Monday during the first day of the trial.