By\u00a0Alexa Ura\r\nBeyond the immediate legal fight over whether Texas lawmakers again discriminated against voters of color\u00a0when drawing new political districts, a quieter war is being waged that could dramatically constrict voting rights protections nationwide for years to come.\r\nFor decades, redistricting in Texas has tracked a familiar rhythm \u2014 new maps are followed by claims of discrimination and lawsuits asking federal courts to step in. Over the years, Texas lawmakers have repeatedly been ordered to correct gerrymandering that suppressed the political power of Black and Hispanic voters.\r\nThe pathway to federal court has been through the Voting Rights Act. Key portions of the landmark law have been weakened in the last decade, but Texans of color still find a way to file lawsuits under its Section 2, which prohibits discriminatory voting procedures and practices that deny voters of color an equal opportunity to participate in elections.\r\nThose protections are the vehicle being used by voters and various civil rights groups to challenge political maps for Congress and the state legislature drawn by Texas Republicans in 2021 to account for population growth. In what promises to be a protracted court fight, Texas will defend itself against accusations that it discriminated \u2014 in some cases intentionally \u2014 against voters of color.\r\nBut tucked into the legal briefs the state has filed with a three-judge panel considering the redistricting lawsuits are two arguments that reach far beyond the validity of the specific maps being challenged.\r\nFirst, the Texas attorney general\u2019s office is arguing that private individuals \u2014 like the average voters and civil rights groups now suing the state \u2014 don't have standing to bring lawsuits under Section 2. That would leave only the U.S. Department of Justice to pursue alleged violations of the act, putting enforcement in the hands of the political party in power.\r\nSecond, the state argues that Section 2 does not apply to redistricting issues at all.\r\nShould either argument prevail \u2014 which would almost certainly require it to be embraced by a conservative U.S. Supreme Court that has already struck down other portions of the law \u2014 the courthouse door will be slammed shut on many future lawsuits over discriminatory map-drawing and voting practices.\r\n\u201cFundamentally, this Supreme Court thinks we are past the time in which we need the Voting Rights Act, so of course, if you're a state like Texas, you\u2019re going to bring every argument that\u2019s ever been made to challenge the constitutionality of the rest of it,\u201d said Franita Tolson, a vice dean and law professor at the University of Southern California Gould School of Law.\r\nFor now, the Texas redistricting fight is in the hands of a three-judge panel in El Paso. An assembly of\u00a0individual voters,\u00a0organizations that serve Texans of color\u00a0and the\u00a0U.S. Department of Justice\u00a0is challenging the redrawn maps, claiming they illegally diminish the voting strength of voters of color while giving white voters more political power.\r\nThe case won\u2019t go to trial until the fall, but the panel has already recognized Texas\u2019 attempt to steer voting rights law onto new terrain.\r\nThe state\u2019s challenges to Section 2 first surfaced in its failed efforts to convince the court to throw out the lawsuits without even considering the merits of the challengers\u2019 claims. The panel \u2014 made up of one Democratic and two Republican appointees \u2014 rejected the argument on standing, deeming it \u201cambitious\u201d for a court to agree with the state in light of \u201cprecedent and history.\u201d\r\n\u201cAbsent contrary direction from a higher court, we decline to break new ground on this particular issue,\u201d the court said in December.\r\nState lawyers themselves have acknowledged their second argument on whether Section 2 applies to redistricting is \u201ccurrently foreclosed by precedent.\u201d\r\nBut in consequent filings, the state has been clear it is inserting the arguments into the case to lay the groundwork for appeals and possible consideration by the Supreme Court \u2014 where, experts in voting law and civil rights advocates say, the state may find a more receptive audience.\r\nAttorney general Ken Paxton's office did not respond to a request for an interview with a member of the legal team on the case. In its briefs, the state argues the Supreme Court has never actually decided whether Section 2 gives private individuals \u201cimplied\u201d standing to sue, quoting from a recent opinion by conservative appointees to the court that describes the issue as \u201can open question.\u201d\r\nThe state\u2019s claim that Section 2 does not apply to redistricting was initially contained within a footnote but remains brief, pointing to equally brief statements by conservative appointees to the court.\r\nFor much of that time, the legal fights took place\u00a0under a process known as preclearance; Texas and other states with a history of discrimination were required to get federal approval for new districts. That put the burden on the state to prove that its redistricting work did not set back voters of color \u2014 a test which the state repeatedly failed.\r\nNoting that conditions for voters of color had "dramatically improved," the Supreme Court dismantled the preclearance regime in a 2013 decision. As part of its reasoning, the court pointed out that Section 2 would continue to stand as a bulwark against voter suppression.\r\nBut the high court has\u00a0subsequently weakened what remains\u00a0of the Voting Rights Act, including a decision in Texas\u2019 last redistricting cycle granting state lawmakers\u00a0a high presumption of acting in \u201cgood faith\u201d\u00a0when enacting new maps \u2014 which legal experts have argued makes it harder to convince the courts of violations.\r\nThe turnover at the Supreme Court has cracked the door for \u201caudacious attacks on Section 2,\u201d that would have \u201cnever had a chance\u201d under previous iterations of the court, said Rick Hasen, a law professor at the University of California, Irvine who specializes in voting law. Texas is trying to push the door wide open.\r\nIn legal briefs, Texas\u2019 argument that Section 2 does not apply to redistricting relies almost exclusively on a series of comments in opinions by Justice Clarence Thomas, who has plainly endorsed the idea in cases dating back to 1994. Justice Neil Gorsuch, a Trump appointee who joined the court in 2017, echoed the view in one of Thomas' recent opinions.\r\nIn a recent case over Arizona voting laws, Thomas and Gorsuch also joined an opinion indicating they agreed with the argument Texas is offering now that private individuals cannot sue to enforce the Voting Rights Act.\r\nThe fallout if the Supreme Court agreed with the state on either argument would be radical, upending long established procedures for litigating claims of discrimination in voting and redistricting, and making it harder to enforce what has endured as the chief federal protection for voters of color in a post-preclearance world.\r\nCovering its bets, the state is also pressing a backup argument \u2014 that even if individual voters are allowed to sue under Section 2, organizations that serve voters of color cannot bring claims on their behalf. That could knock out of the box groups like the NAACP and LULAC who may have more resources and membership across the state to prop up the complex challenges.\r\nIf affirmed by the court, that prospect would put even more pressure on private individuals to protect themselves from alleged discrimination by the state, said Noor Taj, a lawyer with the Southern Coalition for Social Justice who is representing various civil rights and community groups that serve Texans of color, particularly Asian Texans, in a lawsuit against the maps.\r\n\u201cIt\u2019s either taking their rights altogether or increasing the burden,\u201d Taj said. \u201cBoth ends of that are problematic and incorrect.\u201d\r\nIf the high court ultimately decides redistricting lawsuits simply aren't allowed under Section 2, the recourse left for Texans of color to challenge political maps would be litigation under the U.S. Constitution\u2019s broader promise of equal protection.\r\nThat would require challengers to show lawmakers intentionally discriminated against them \u2014 \u201cwhich is the hardest case to win, particularly before a Supreme Court,\u201d said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund.\r\nThe state\u2019s efforts to overturn protections for voters of color is ironic given its long history of violating the same law it is now looking to gut, said Perales, who is suing the state over its latest maps on behalf of a group of individual voters and organizations that represent Latinos.\r\n\u201cSince the beginning of the modern era of decennial redistricting, Texas has been found liable for violating the voting rights of Latinos in every single cycle,\u201d Perales said.\r\nThe more \u201caggressive attacks\u201d on Section 2 have come as it\u2019s getting harder for Republicans to comply with the law while preserving their power, Hasen said.\r\nIn the first decade freed from preclearance, the Republican-controlled Legislature last year used the redistricting process to draw maps that solidified the GOP\u2019s political dominance in Texas while weakening the influence of voters of color.\r\nTo that end, Republicans looked beyond packing voters of color into the fewest number of districts, taking an\u00a0almost surgical approach to slicing up diverse suburban communities\u00a0that were trending against them. Voters of color in those areas were left stranded in sprawling districts that stretch into more rural areas where majority white electorates will overpower their votes.\r\nThe Supreme Court\u2019s recent posture on voting rights \u201chas emboldened states like Texas to do what they think they can do to enhance the power of white Republicans in the state of Texas and roll the dice in front of a much more favorable judiciary than they faced a decade ago,\u201d Hasen said.\r\nRepublican lawmakers defended their map-drawing, arguing districts were reconfigured to equalize population while following various traditional guidelines, such as preserving political subdivisions, communities of interest, and geographic compactness. One of the chief map-drawers characterized the drawing as a \u201crace-blind\u201d exercise\u00a0with maps later presented to legal counsel who cleared them as compliant with the Voting Rights Act.\r\nBut the redistricting sprint \u2014 under complete Republican control \u2014 drew complaints for being rushed and closed off. Throughout the process, the public was limited in its ability to weigh in on the new maps. Some public hearings were carried out within days of new maps being revealed or with just a 24-hour notice. Much of the feedback from Texans who told lawmakers their maps were not reflective of their communities was ignored.\r\nIn committees and on the House and Senate floors, the fate of the GOP\u2019s drafting often appeared to be predetermined, sure to advance even before the public or Democratic lawmakers had been heard.\r\nThe state\u2019s current effort to now undermine protections for voters of color is an extension of its pattern of manipulating the rules at the expense of voters of color it has historically discriminated against, said Tarrant County Commissioner Roy Brooks.\r\nBrooks is among the plaintiffs in the lawsuits over the new maps who would be unable to sue the state under the scenario Texas is looking to cement in challenging the Voting Rights Act.\r\n\u201cIt very clearly demonstrates that those in power are determined to hold onto it by any means necessary,\u201d Brooks said. \u201cIf that means trampling on the rights of Black and Hispanic voters, then they are more than willing to do that again and again and again.\u201d\r\nThis story was originally published by the Texas Tribune.