The Justice Department will deliver its opening salvo today in Texas' controversial redistricting case, laying out its initial argument on whether the state's new Congressional map adheres to the Voting Rights Act.
The department's legal brief will also give a hint as to how hard the Obama administration will fight for Hispanic voters in a proxy battle against one of the president's potential opponents next year, Texas Gov. Rick Perry (R).
"It's a critical step in figuring where we end up in redistricting, especially Congressional redistricting," said Michael Li, a Democratic election attorney in Dallas. "It's the first time Democrats have controlled the Justice Department [during this process] in 40 years, since the Voting Rights Act was enacted. Everyone has been wondering how aggressive the Justice Department is going to be."
Earlier this year, Texas Republicans passed a Congressional map that added four new House seats — a result of population growth. But Democrats charge that the map does not accurately reflect the increase in Hispanic voters by creating additional majority-minority districts.
The Justice Department has been tight-lipped about the Texas map. Xochitl Hinojosa, the department's spokeswoman for the civil rights division, declined to comment for this story.
But many Democrats are optimistic that the Justice Department will use the new Texas map as the basis for a major judicial battle.
"Those of us who have been following this believe there is ample reason why the Justice Department will object to these plans," said Matt Angle, a Democratic strategist and redistricting expert from Texas.
The Department of Justice's brief, due in court today, could provide a range of answers, redistricting experts said. It could approve the map, making an upcoming federal trial almost moot, or it could ask for more information about certain areas of concern. The department's attorneys could also oppose parts of the Texas plan or all of it.
Meanwhile, a separate federal trial over the map in San Antonio wrapped up last week. That court is expected to hold off on a decision until the U.S. District Court for the District of Columbia gets the DOJ brief and then decides on moving forward with a trial.
Many prominent Republicans are mum on the matter. Some of them involved with the new map declined, through aides, to be interviewed for this story, including Texas Attorney General Greg Abbott, National Republican Congressional Committee Chairman Pete Sessions and Republican Reps. Joe Barton and Lamar Smith.
"The State is confident that the new legislative and Congressional maps comply with both the federal Voting Rights Act and the U.S. Constitution," Abbott spokeswoman Lauren Bean wrote in an email. "For the last ten days the Texas Attorney General's office has defended Texas' new redistricting maps, including the Congressional map, in trial in federal district court in San Antonio."
But Texas House Members are not optimistic, given the conclusion of the San Antonio trial, according to one well-placed party operative in the state. Like many others, the operative declined to speak on the record during ongoing litigation.
In the San Antonio trial last week, the state's expert witness testified that Republican Rep. Francisco "Quico" Canseco's new district does not pass muster as a Hispanic-performing district. That's one of three major legal problem areas Democrats frequently cite in the new Texas map. They also lament that there's only one minority district around Dallas, even though there are 1.5 million Hispanics in the area.
Finally, Democrats argue the map as a whole retrogresses the representation of majority-minority districts from 11 to 10 seats, despite the state picking up four seats.
"The state's expert witness turned a rock-solid legal argument into a question when there are already so many other questions," the GOP operative bemoaned. "Because of the way the [state] attorney general handled the case, there's no question that Republican Members are extremely nervous about the potential outcome and ruling on this case. Nervous is an understatement."
Members are worried about their seats, but the implications of the redistricting court battle go beyond the state's map.
Obama stands to gain if the Justice Department battles the Texas map, staging a symbolic fight with his surging rival, Perry. Polls show the president's standing with Hispanic voters continues to slip, and a strong effort in court will show that his administration is on their side.
"It sends Hispanic voters a message that this Justice Department is ready to fight to defend the Voting Rights Act — and not just Hispanic voters, but African-Americans voters," Angle said.
Perry signed the map into law, so he benefits if courts pre-clear it without much hassle. Many Republicans see Perry as the party's best shot to compete for Hispanic voters in 2012, and an easy trial reinforces that notion.
"He's one of the candidates that truly understands the Hispanic community given that almost 40 percent of the state is Hispanic," said Bettina Inclán, the former national executive director of the Republican National Hispanic Assembly. "They have a huge part of the state that is Latino, and he also has one of the largest borders with Mexico."
Perry faced a tight time frame to sign the map in mid-July, just a few weeks before he announced his campaign for president. If he vetoed the bill, he would have been forced to call another special session for lawmakers to pass a new map — a move that would have pushed his campaign launch even further into the fall.
Texas is up against the clock to finish the map before candidates begin filing for next year's primaries on Nov. 12. The map must be done 30 days in advance of that date, leaving only a few weeks to resolve any legal issues.
Texas has a history of legal challenges to its maps. In 2001, a federal court redrew the lines after the Legislature failed to pass its own map. The next year, then-House Majority Leader Tom DeLay's (R) state allies redrew the map again.
In 2006, the Supreme Court struck down part of DeLay's map and ruled that one district violated the Voting Rights Act.
The redraw orchestrated by DeLay remains one of the most controversial redistricting cases in history. It's a situation that only amplifies the stakes this time for Texas as well as for Hispanic voters across the country.
"I can't imagine it being more politicized than the 2003 DeLay redistricting," Li said. "It's sort of a battle between the old and new Texas. It's a battle between Anglo Texas and Hispanic Texas in a lot of ways, and the emerging Hispanic majority."