Lawsuit blames Texas' at-large districts for lack of Latino judges

By Dawn Geske | Aug 7, 2016

AUSTIN – A lawsuit has been filed against Texas' governor and secretary of state regarding the alleged denial of equal opportunity for Latino voters in electing judges of their race.

The suit filed by five Latino voters alleges that Texas is in violation of the Voting Rights Act for the process used to elect judges to the Texas Court of Criminal Appeal and the Supreme Court. The legal team challenging the act states that at-large districts are to blame.

“At-large elections with numbered posts always tend to mean that majorities get all the seats,” Joseph Fishkin, assistant professor of law at the University of Texas School of Law and an expert in voting rights told the Southeast Texas Record. “When votes are racially polarized, as they are in Texas, this means that the white majority of voters tends to win all the seats and racial minorities tend not to win any.”

Texas currently has nine Supreme Court judges and nine appeals court judges, who are elected to office by voters in the state. The plaintiffs in the suit are claiming that the judges on the benches don’t provide an accurate representation of their race, which they are entitled to under the Voting Rights Act.

The plaintiffs allege the at-large districts are the problem as these areas are made up of mostly white Texans, which makes it a challenge for a non-white judge to get elected. Since 1945, only 4 percent of the judges who  have held the position in the court of appeals have been Latino; and only 6 percent in the Supreme Court have been Latino, according to the suit. 

“If we switched to districts, as long as they were fairly drawn, minority voters would elect who they want more often than they do now,” Fishkin said. “So, yes, it’s in some ways a very straightforward case under the Voting Rights Act. If this were, say, the State Board of Education, and we were electing it with at-large statewide votes for numbered posts, there is basically no question it would violate the Voting Rights Act, and a judge would strike it down and require drawing districts. This has happened all across Texas with many types of elections over the decades that we have had a Voting Rights Act.”

The at-large districts may be to blame as over a course of several decades every Latino who has run for election of a judge seat in these courts has lost. Suggestions to break up the districts into more representative categories are being made that will allow for more diversity in the courts in these elected judge positions.

The merits of this case are yet to be proved, but according to Fishkin they present some unique challenges.

“The unusual wrinkle in this case is that this is a judicial election, rather than some other kind of election,” Fishkin said. “A court may view a judicial election differently, on the grounds that courts are not the same as other political offices, and that is what makes this a close case where it is hard to predict the outcome.”

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