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Two Texas Cases Test the Boundaries of Redistricting Law

Two Texas redistricting cases worth watching are quietly working their way through the courts. Both raise novel issues and point toward the types of considerations other courts may face.

February 17, 2015

Over the years, Texas has made more than its share of redistricting law, and this decade’s mapdrawing has already seen more than a little drama — with two sets of temporary maps, delayed 2012 elections, and an emergency trip to the Supreme Court.

But while most of the attention has been on the high-profile fight that minority groups have been waging since 2011 to redraw the state’s legislative and congressional maps, two other Texas redistricting cases also worth watching are  quietly working their way through the courts. Both raise novel issues about redistricting law, and, though observers are generally skeptical that courts will use the cases to create new legal doctrines, they both point toward the types of issues courts in other rapidly changing states soon may face as well.

The first case — Evenwel v. Abbott ­— challenges the state map passed by the Texas Legislature in 2013, on the grounds that the Legislature drew districts to equalize the total population of districts rather than the same number of eligible voters. In many parts of the country, the distinction would not matter or, at most, it would result in very small differences. Not so in Texas, where in urban areas like Dallas and Houston, up to 50 percent of voting age Hispanics are not currently U.S. citizens.

The plaintiffs say that drawing districts based on total population rather than the number of voters means that some districts (typically ones with low numbers of Hispanics) have far more voters than others. They say that runs afoul of the one-person, one-vote principle that has been the bedrock of redistricting jurisprudence since the 1960s.

This isn’t the first time the issue has come up in Texas. Just last year, the Fifth Circuit rejected a similar challenge over the use of total population to draw Irving’s new single-member city council districts, and the Supreme Court declined to hear an appeal. This time, the plaintiffs didn’t fare any better with the panel of three federal judges who heard the case in Austin. Rather, the panel ruled that states have broad discretion to decide what population measure would best serve the state’s representational goals.

It’s not hard to see why a flexible rule makes great practical sense. Elected officials, after all, represent more than just voters — a fourteen-year old in foster care might well want to lobby her legislator to make changes to the foster system, and even non-citizens have concerns about schools, safety, and the like. Drawing districts based on the number of voters would mean that Hispanic districts in many parts of Texas would need to contain more actual people (each a constituent), than comparable suburban white districts. It also critically — and this is why the issue is so important — could make it harder to draw compact new majority-minority districts under the constraints imposed by the Supreme Court. That would seriously undermine the growing electoral strength of a group that accounted for a remarkable 66 percent of Texas’ population gain in the last decade.

After an adverse judgment in November, the plaintiffs have now asked the Supreme Court to hear the case. Many observers expect the court to affirm the decision below without holding oral argument. If it does so, it would resolve the issue once and for all because the decision would be a judgment on the merits. On the other hand, if the Court surprises and sets argument in the case next term, it would signal a potential radical reworking of how redistricting is done in the United States.

By comparison, the second boundary-testing Texas case — Harding v. Dallas Co. — is just in its infancy. Like the first, however, it also is rooted in Texas’ rapidly changing demographics.

In Harding, a group of white voters in Dallas County are contending that the county commission districts drawn in 2011 failed to give the county’s white voters sufficient opportunity to elect their preferred candidates. The suit argues that the Voting Rights Act requires drawing of a new white-majority district to give white voters control of an additional seat on the commission.

On the surface, the case seems lacking in legs.

To succeed, Harding will have to show that racially polarized voting exists in Dallas County at a sufficient level to defeat white voters’ ability to elect their community’s preferred candidates and, additionally, that the “totality of circumstances” requires the remedy of a race-based district.

The first part should be easy enough. Racially polarized voting exists in Dallas County — as it does in most of Texas and the South. There is little dispute, likewise, that white voters in Dallas County by and large favor candidates of a different party than African Americans and Hispanics.

Winning a court-mandated “white district,” however, will require that the plaintiffs also be able to show that the history of discrimination and lingering social and economic disadvantages mean that white voters in Dallas County have “less opportunity . . . to participate in the political process and to elect representatives of their choice.” Given the economic, societal, and political advantages that whites have long enjoyed in Dallas County, that would seem to be a very difficult showing to make.

At the end of the day, while neither of the Texas cases is likely to succeed, they highlight a jockeying for power in a rapidly changing state — something that for better or for worse is only likely to increase as the state’s demographic status quo continues to be upended. With the nation not far behind Texas in the scale of its demographic change, these sorts of issues could soon make their appearance on the national stage as well.

(Photo: Flickr/Ohad)