Texas Redistricting Battle Begins
The saga of Texas redistricting returns to the forefront this week when a three-judge panel in San Antonio starts trial on claims maps passed by the Texas Legislature in 2011 and 2013 violate federal law.
Here’s some background on what you need to know:
Who are the parties and who is asserting what?
Texas is a big state, and the Texas cases involve no fewer than 10 different plaintiff groups, including the Department of Justice and several groupings of African-American and Hispanic voters.
However, although the challenges focus on different parts of the maps, the core argument for all of the plaintiffs is that the maps were intentionally discriminatory against African-American and Hispanic voters in violation of the Constitution as well as section 2 of the Voting Rights Act.
In some cases, the plaintiffs contend this discrimination was achieved by packing non-Anglo voters into a few districts, while, in other cases, they argue non-Anglo voters were deliberately split up to prevent them from having an effective voice.
In still yet other situations, the plaintiffs contend a much more sophisticated form of discrimination took place, with Texas map drawers carefully swapping out low-turnout Hispanic voters for higher voting Hispanics. This sleight of hand — explained in an email by the lawyer for Texas’s Republican congressional delegation — left the illusion that nothing had changed in the district, when in reality, according to the plaintiffs, the district had become substantially less favorable.
Some, but not all, of the plaintiffs also contend that the 2013 maps, although an improvement, failed to create a sufficient number of majority-minority congressional or state house districts under section 2 of the VRA — in particular, an additional minority congressional district in the DFW Metroplex and state house seats in Fort Bend, Bell, and Hidalgo counties. And in a perennial battle, a group of Travis County voters also are arguing for restoration of a district anchored in that county.
How long will the trial last?
The court has ordered that trial take place in four phases.
The first part will run from July 14 through July 19 and will be devoted solely to disputes about the 2011 state house map.
The second part will start August 11 and run through August 15 or, if needed, August 16, and will address claims about the 2011 congressional map.
Then, in a third phase at a date to be set in the future, the panel will take up disputes about the 2013 state house and congressional maps.
After the panel finishes hearing evidence about the 2011 and 2013 maps, it will decide whether any of the claims have merit and, if it concludes that there is “liability” then the court will hold a fourth phase where it will decide whether changes need to be made to the maps and whether the violations rise to the level such that Texas should be bailed back into preclearance coverage under section 3 of the Voting Rights Act.
The court so far has not given any indication of how long the remaining two phases might take or how long the court might take to rule.
Why is the court focusing on the 2011 maps if those are no longer the maps Texas is using?
Although Texas is no longer using the 2011 maps passed by its legislature, lawyers for the Justice Department and minority groups have argued that the court still has the power to decide whether those maps — which were legally operative at the time the suits were filed — were intentionally discriminatory and, if so, to require Texas to submit future election law changes for pre-approval before putting them into effect
The court agreed explaining in an order that claims about the 2011 maps were not moot because:
[T]here is no indication or assurance that, in the next redistricting cycle, the Texas Legislature will not engage in the same alleged conduct that Plaintiffs assert violated their rights, including removing economic engines from minority districts, dismantling coalitions, manipulating turnout among Hispanics, or engaging in other conduct that Plaintiffs allege violated their rights in connection with the 2011 plans”
What kind of fixes might the court impose?
If the panel finds violations of the Constitution or section 2 of the Voting Rights Act, it will need to decide how to fix the problems identified. This could involve the court drawing replacement maps after input from the parties, appointing a special master to draw maps, or giving the Texas Legislature a first shot at drawing replacement maps.
However, one of the things that makes this year’s Texas redistricting trial more high stakes than usual is the possibility that Texas could be returned to preclearance coverage if the court finds intentional discrimination.
If that happens, the court could decide to use a process under section 3 of the Voting Rights Act called “bail in” to order Texas to submit any future redistricting plans — and potentially also other election law changes — to a judicial panel or the Justice Department for preclearance review akin to that which took place under section 5 of the Voting Rights Act prior to Shelby Co. v. Holder. The plaintiffs in the Texas case are asking that the Texas be “bailed in” for a period of at least 10 years.
Section 3 has not been widely used to date, and there is comparatively little guidance in case law on when and how to apply the “bail in” provisions of section 3. The Texas case thus could be in a position to break new ground and will be closely watched for that reason.
Will the trial have any impact on the 2014 elections?
No. The court ordered that the maps adopted by the Texas Legislature in 2013 be used as interim maps for the 2014 election. Any changes will take effect for the 2016 election cycle.