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Texas Redistricting Battle Begins

The lengthy fight over redistricting in the Lone Star state begins trial this week before a three-judge panel in San Antonio.

July 14, 2014

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.

(Photo: AP)