Friday, August 28, 2009

Speak of the Devil: The Texas Two-Step in Court

...and this is something that the Democratic Change Commission will want to consider if the primary/caucus system in Texas comes up in the discussion at its meeting tomorrow in St. Louis. It is even more interesting because this is bound to come up in the session.

Earlier this week, the US District Court covering West Texas denied the Texas Democratic Party's request for a summary ruling in a case involving the pre-2008 changes to its method of delegate selection. [Here is the full ruling.] The case revolves around a challenge to the Texas Two-Step (primary-caucus combination) on the grounds that it violates the preclearance provisions laid forth in Section 5 of the Voting Rights Act. Honestly this is a very clever way of challenging the system. What is Section 5, you ask? According to DOJ:
"Under Section 5, any change with respect to voting in a covered jurisdiction -- or any political subunit within it -- cannot legally be enforced unless and until the jurisdiction first obtains the requisite determination by the United States District Court for the District of Columbia or makes a submission to the Attorney General. This requires proof that the proposed voting change does not deny or abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies the requested judgment, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable."
Most of the jurisdictions covered are in the states of the former Confederacy and as the map below (also from DOJ) indicates, Texas is on the list. The catch is that Section 5 typically applies to election procedures for general elections and primaries for state and local offices, not to presidential nomination races. It is a logical extension though.

[Click to Enlarge]

As I mentioned the other day, delegate selection plans are submitted by each state to the (national) Democratic Party for approval, but these have not been the subject of a Section 5 preclearance review in the past. Though, it may be a logical extension of the law, it has, to this point at least, been assumed that the national parties held the right to make the determination of what was admissible in terms of presidential delegate selection on a state by state basis.

And the Democratic Party has been approving the Texas Two-Step for years. This isn't a new conflict. In 1988, for instance, Michael Dukakis won the Texas primary and Jesse Jackson won the caucus (There's more about that here.), only there wasn't nearly as much resulting tension as there was between the two main candidates in 2008. Also lacking in 1988 was the fact that less inclusive segment of the plan (the caucus) overturned the results from the more inclusive other segment (the primary). But the thing about the American legal system is that it is not proactive. The legality of something has to be challenged for it to even make its way into the judicial system to be questioned.

However, it isn't really the Texas Two-Step that is being questioned here, but the delegate equation behind it. Specifically, that past voting for the Democratic Party candidate in a statewide campaign in jurisdictions would determine the strength of that jurisdiction in terms of delegates. That's nothing new. In fact, past voting history and population are used by the national party to determine how many delegates each state gets. And the states, in turn use a similar formula to allocate them on their level.

However, the plaintiffs in the Texas case are arguing that the support of 2006 Texas Democratic gubernatorial candidate, Chris Bell, had the effect of undervaluing Latino voters in state Senatorial districts (the jurisdictions in question. Texas used Senatorial districts whereas most of states divvy up delegates across US House districts.). The problem was that the Texas Democratic Party's formula used raw vote totals instead of the percentage of the vote in Senatorial districts. In essence, even though majority white districts provided Bell with more total votes than some majority Latino districts, they were allocated more delegates despite the fact that the percentage of support for Bell in Latinos districts was higher. When population of the district was accounted for, then, those districts were diminished in value.

So while I'm tempted to use the court's words* against it (This is a minute detail.), it is a fairly consequential statistical blunder in my view whether it was intentional or not. The type of snafu that will get you taken to court.

This is very interesting stuff and something that the Democrats at the Change Commission meeting tomorrow would be well-advised to consider if the Texas Two-Step comes up (or even if it doesn't).

*"Our decision does not mean that political parties must preclear every minute change in their operating procedures. Instead, we closely follow Morse in concluding that political parties must seek preclearance for a change that affects voting that the party promulgates under the explicit or implicit authority of a covered jurisdiction and that presents no significant First Amendment concerns. We therefore hold that Morse controls, that the TDP has provided no specific explanation as to how a requirement that it preclear its delegate allocation formula impacts its associational freedoms, and that this case is justiciable. Accordingly, we DENY the TDP's motion for summary judgment." [from the ruling linked above]

A tip of the cap to Ballot Access News for the link.

Recent Posts:
Reminder: Democratic Change Commission Meets Tomorrow in St. Louis

State of the Race: New Jersey Governor (8/27/09)

Ted Kennedy's 2008 Endorsement of Barack Obama

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