At the the link, a great summary of the multiple flailings objections by DOJ in District Court where they claim Texas’s preclearance arguments were too simplistic.  The parties briefs can be found here and DOJ filings can be found here.

In papers filed this evening, the Department of Justice and individual parties sharply criticized the standard the State of Texas wants the D.C. panel to use in evaluating arguments about ‘retrogression’ in the state’s redistricting maps.  Calling the state’s proposed standard “arbitrary,” the Justice Department argued that “determining whether a minority group has the ‘ability to elect’ a candidate of choice under Section 5 is not as simple as looking at a discrete set of population figures. ‘The legal standard is not total population, voting age population, voting age citizen population or registration, but the ability to elect.’” [DOJ, p. 4]

Fairly weak objections considering that many believe that “simple is better” when the alternative is aggressive race-based gerrymandering that inevitably results in Shaw districts that would appear as bug splats on the wind shield in our everyday life.  These districts appear so because some demographer is sitting at a computer intentionally looking for minorities to add to a district no matter the appearance.  While DOJ and the groups criticize Texas for simple maps, they can’t seem to draw districts that don’t appear intentionaly racially germandered on its face. 

The DOJ argues that the state’s proposed congressional map also is retrogressive, especially in light of “an almost unprecedented increase in the number of seats in its congressional delegation – four – resulting from a State population increase fueled mostly by the increase in the State’s Hispanic population.” [DOJ, p. 21-22]  and this: According to DOJ, “[u]nder the proposed plan, Hispanic voters will lose ground in their existing ability to elect candidates of choice  … even though the number of Hispanic majority districts remains the same [at] seven,” pointing to what it says are problems in CD-23 and CD-27.  [DOJ, p. 23-24]

So DOJ asserts that while Texas maintained the same number of majority minority seats in their proposed congressional map and generally kept districts at the same level of Hispanic citizen voting age population, there must still be “retrogression” and apparently circumstantial evidence of intentional discrimination.  Why?  Because Texas may have been able to create a few more coalition or opportunity districts.  These coalition districts wouldn’t necessarily elect Hispanics or blacks but rather white politicians such as Texas Democrat Lloyd Doggett who is supposedly the candidate of choice for a coalition of minority groups plus white voters mixed together.  DOJ continues to push these theories despite the Supreme Court weighing in on the issue of coalition districts in the context of Section 2 in Bartlett. 

DOJ is trying to change the question from now simple minded “retrogression” (or backsliding) to a more complex theory disguising a policy of “maximization of seats?”  It appears that the DOJ standard is evolving from maintaining the status quo to pushing the envelope even if alternative maps create gerrymandered bug splats districts that run afoul of the Shaw series of cases at the Supreme Court. 

Bottom Line:  There is no legal authority for the maximization of districts that DOJ is pushing and the coalition district theory is discredited and a sure loser at the Supreme Court.