On July 10, a three-judge panel in Texas begins a week-long trial over the state’s congressional and state house plans. Here’s what you need to know.
What’s the upcoming trial about?
As it has every decade since 1970, Texas has found itself embroiled in litigation about its redistricting plans and their treatment of the state’s large African-American and Latino populations.
The most recent round of disputes comes in the wake of an unprecedented decade of growth for the state’s non-white communities. Of the record 4.3 million people that Texas gained between 2000 and 2010, nearly 66 percent were Latino and another 22 percent were African American. This growth was responsible for Texas gaining four additional congressional seats in the reapportionment after the 2010 Census — in fact, Texas’ white population growth was too slow by itself to have netted Texas even a single new seat.
Despite this remarkable growth, minority advocates say Texas not only failed to create enough new electoral opportunities for Latinos and African Americans in its legislative and congressional plans, it also intentionally packed minority voters into districts or alternatively divided minority communities between districts to dilute their power in favor of the state’s white population.
Disputes about the state senate map were quickly resolved through a settlement in 2012. Claims about state house and congressional maps, however, are now set for their third trial in six years.
The first trial took place in early 2012 and resulted in a ruling from a three-judge panel in Washington, D.C. that declined to give Texas permission to use its newly redrawn state house and congressional plans — a procedural step required at the time for Texas to put the plans into effect because Texas was then covered by the pre-clearance provisions of Section 5 of the Voting Rights Act. In declining to approve the maps, the court found that the plans resulted in dilution (retrogression) of minority voting strength in existing districts and contained substantial evidence of intentional discrimination.
Then, in the fall of 2014, a three-judge panel in San Antonio held trial on separate claims that the maps enacted by the Texas Legislature in 2011 failed to create sufficient additional new minority opportunities and otherwise violated the Voting Rights Act and/or Constitution. This trial resulted in a pair of 2–1 decisions in March and April of this year holding, among other things, that the 2011 plans:
- were intentionally discriminatory,
- unconstitutionally drew a number of congressional and state house districts predominantly on the basis of race (i.e., were racial gerrymanders),
- failed to create a sufficient number of Latino congressional districts in South and West Texas as required by the Voting Rights Act, including a district that takes in the Latino population of Nueces County, and
- diluted the vote of minority communities in the drawing of state house districts in Bell, Bexar, Dallas, El Paso, Harris, Nueces, and Tarrant counties, in the Rio Grande Valley, and in the state as a whole.
However, because the Texas Legislature replaced the 2011 plans with the current plans in 2013, the court now also needs to decide whether these newer maps (originally created by the three-judge panel in San Antonio for use on a temporary basis for the 2012 election but subsequently adopted by the state, with a handful of tweaks, on a permanent basis) contain violations.
The claims before the court contend that both the 2013 maps were intentionally discriminatory and that they violate the Voting Rights Act by failing to create a sufficient number of minority opportunity state house and congressional districts (more below).
Once the court rules on the 2013 plans, the stage will be set for a redrawing of Texas’ state house and congressional maps for the 2018 elections because the full extent of problems with the maps will have been determined. A ruling will set the stage for the court to consider “bail in” of Texas back into preclearance coverage under Section 3 of the Voting Rights Act — something a federal court can do if it finds that a state intentionally discriminated. The court previously held that the 2011 maps were intentionally discriminatory. It now will decide whether adoption of the 2013 maps was tainted by intentional discrimination.
How do claims about the 2013 plans differ from those about the 2011 plans?
There is substantial overlap between the two sets of claims, and, notably, many of the problems the court found in the 2011 maps also carried forward into the 2013 maps and will need to be addressed when it comes time to draw remedial maps. These include rulings that Texas failed to create a sufficient number of Latino majority congressional districts in South Texas and a finding that TX-35 — the long congressional district stretching from Austin to San Antonio currently represented by Lloyd Doggett — was a racial gerrymander. These claims, however, will not be the focus of the current trial.
Rather, the trial will center on a number of additional claims specific to the 2013 maps:
- Among the most significant is a claim that the state intentionally discriminated when it enacted the 2013 maps.
Texas asserts that there was no discriminatory intent in adoption of the 2013 plans because it was merely making the court-drawn interim plans permanent (with a handful of tweaks to the state house map).
The plaintiffs say, however, that the rushed and secretive process used to adopt the plans, as well as the fact that the state ignored both statements from the court that the interim plans might not resolve all problems in the 2011 maps and subsequent rulings by the court in the preclearance case finding substantial evidence of discriminatory intent, show that true intent of the state in 2013 was to lock in as much discrimination as possible. Additionally, the plaintiffs claim that discriminatory intent from the 2011 plans carries forward to the 2013 plans insofar as portions found to be intentionally discriminatory are the same in both plans.
- The court will need to decide whether the changes it made in its interim plan to TX-23 — the state-sized district in Southwest Texas currently represented by Will Hurd — were sufficient to remedy what the court found was intentional dilution of the Latino vote in the 2011 configuration of the district.
- To remedy vote dilution, various plaintiffs contend that an additional minority opportunity district needs to be created in the Dallas-Fort Worth area to compliment TX-33 — the coalition district added by the court in the interim plan that became the state’s 2013 map. This would give the Dallas-Fort Worth area three minority districts in total. Some of the plaintiffs argue for creation of new Latino or coalition congressional districts in the Harris and Fort Bend counties.
- Last but not least, Latino plaintiffs are challenging the redrawing of State House District 90 in the 2013 map — contending that it diluted Latino voting strength — and argue that additional Latino districts could be created in Dallas, Harris, Tarrant, Nueces, Fort Bend, and Bell counties.
One issue, however, that the court will not take up is the question of partisan gerrymandering. Although the Texas Democratic Party raised partisan gerrymandering claims about both the 2011 and 2013 congressional plans, the court dismissed those claims. Resolution of whether the Texas maps were partisan gerrymanders will have to await appeal to the Supreme Court — something that can only happen once the court resolves all of the other issues in the case.
What other steps need to happen to resolve the Texas redistricting case?
The Texas redistricting case has been going on since 2011, but this month’s trial is in many ways only a middle step in the process.
After the court rules on the 2013 plans, two important things remain to be done.
First, the maps will need to be redrawn to remedy any violations that the court finds, including any violations in 2011 maps that carry forward into the 2013 maps. Second, the court will need to take up the issue of whether Texas should be bailed in to preclearance coverage under Section 3 of the Voting Rights Act because of intentional discrimination in the 2011 maps, the 2013 maps, or both and, if so, how long and what the terms of that bail in should be.
Of these two remaining steps, the court is likely to take up redrawing of the maps first, given the urgency of having replacement maps in place in time for the 2018 primary. The court has yet to issue any orders or guidance on how the remedial map process will work, but the accepted practice in redistricting litigation, except in extraordinary cases, is for a state to have the first shot at crafting a remedial map. Therefore, it is very likely that the court will give Texas at least some window of opportunity to hold a special session on redistricting.
If Texas holds a special session and adopts replacement maps, those maps then would be subject to court review and possible modification (a similar process is taking place this summer in Alabama). If Texas does not hold a special session on redistricting, or fails to adopt any new maps in a special session, then the court would draw remedial maps on its own with input from the parties. In either event, an order blocking use of the current maps would be appealable to the Supreme Court — meaning the Supreme Court will have the final word on what maps Texas uses in 2018..
At some point in the future, perhaps this fall or winter, the court will start the process of deciding whether to bail Texas back into preclearance under Section 3 of the Voting Rights Act.
How will litigation impact the 2018 primary?
It is unclear at this juncture whether and how the 2018 election schedule will be impacted by pending litigation.
While the parties and the court undoubtedly would like to avoid disruptions of the sort that occurred in 2012 — when the primary was pushed from early March to late May — at least some disruption may be unavoidable given the number of steps that have yet to take place and the possibility of one or more emergency appeals to the Supreme Court.