TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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On Friday, the parties in the consolidated San Antonio case filed their reply briefs responding to the post-trial briefs filed on October 7.  

The briefs contain a bit more than the usual share of lawyerly back and forth, with the Texas Latino Redistricting Task Force accusing the state of “repeatedly and blatantly mischaracteriz[ing] the evidentiary record and Plaintiffs’ factual contentions” and making statements without support, including statements about alleged redistricting committee hearings that did not, in fact, occur.  The Task Force also accuses the state of misrepresenting Hispanic growth rates in Dallas and Harris counties.

Some of the main areas of legal contention between the parties:

Are coalition districts viable under the Voting Rights Act?

This issue lies perhaps at the crux of the dispute about whether more minority opportunity districts must be created under section 2 of the Voting Rights Act.

In Bartlett v. Strickland, the Supreme Court held that additional minority opportunity districts do not need to be created under section 2 of the Voting Rights Act until a minority group’s voting age population in a given region passes 50%.  However, the Strickland case involved an area of the country (North Carolina) where at the time Anglos and African-Americans were the only two major ethnic groups. What the case left undecided is whether in a tri-ethnic society like Texas, African-Americans and Hispanics can be aggregated for purposes of the 50% threshold.

The plaintiffs contend that Fifth Circuit case law clearly allows such aggregation where, as they argue is the case in Texas, the two minority groups vote cohesively, at least in general elections.

The state argues that such coalition districts are merely a variant of the Anglo majority ‘minority influence districts’ it contends have been disfavored by courts and would inject politics into the redistricting process.

Is there racially polarized voting in Texas?

A second element of the Gingles test is that there be racially polarized voting such that the preferred candidate of minority groups is usually defeated by the Anglo preferred candidate.  

The parties also offer different theories on this point.

The plaintiffs, for their part, point to evidence that African-Americans and Latinos in Texas heavily favor Democratic candidates in the general election, while typically (with the exception of Travis County) only 21-28% of Anglos vote for Democratic candidates.

The state counters by claiming that the plaintiffs’ evidence points not to racial polarization but rather polarization by political preference, arguing that Hispanic Republican candidates received roughly the same percentage of votes from each ethnic group as did GOP candidates who were Anglo.  They argue the same holds true for candidates who are Anglo Democrats when compared to the performance of Democratic candidates who are members of minority groups.  

The plaintiffs sharply dispute this analysis, contending that Gingles makes clear that it is not the race of the candidate which is relevant but rather what candidate (regardless of race) is preferred by a minority group. The plaintiffs argue that the record is clear that minority groups continue, by large percentages, to prefer different candidates than the ones favored, by equally wide margins, by the state’s Anglo population.

The plaintiffs also contend that the state ignores ‘totality of circumstances’ portion of the Gingles test in gauging what opportunity members of minority groups have to elect candidates of choice. 

Is CD-25 entitled to protection?

The Travis County plaintiffs also argue that CD-25 (Lloyd Doggett’s current seat) is entitled to constitutional protection as an effective crossover district where a tri-ethnic coalition can, and has been, electing its candidate of choice.

According to the Travis County plaintiffs, what the state did under its map was solve the need to create additional minority opportunity districts by impermissibly pulling in population from the one area of the state where “there is not racially polarized  voting at a significant level” (i.e., an area where there is no section 2 claim).  This, they claim, runs contrary to the Supreme Court’s 2006 holding in LULAC v. Perry that “‘creation of an opportunity district for those without a § 2 right’ is not a substitute for failing ‘to provide an opportunity district for those with a § 2 right.’”

Strickland, they say, recognized this very problem when it explained that, even where section 2 does not apply, “[i]f there were a showing that a State intentionally drew district lines to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments.”  In the case of the state’s map, they contend the required intent exists because evidence shows that race was the predominant factor in deciding what voters to pull out of the CD-25 and put in the new CD-35- noting, among other things, that Travis County precincts were split along racial lines to create the new district. 

The state, in its brief, disputes the Travis County plaintiffs’ evidence of discriminatory intent based on race.  According to the state, while it may have divided up the current Doggett district, it did so not based on race but “a single non-racial characteristic: preference for Democratic candidates.”  The state also takes the position that the Voting Rights Act did not require it to create CD-35 (though, frankly, it is not clear whether this helps the state against a claim of racially discriminatory intent).

What is the relationship of the county line rule and the Voting Rights Act?

The state contends that section 2 must be applied within the constraints of the state constitution’s county-line rule for state house districts.

MALC and the Latino Task Force argue that ‘traditional redistricting principles’ apply in voting rights cases only to the extent that they do not conflict with the Constitution or the Voting Rights Act.

How many Hispanic opportunity congressional districts do the maps create and are they constitutional?

The parties’ briefs also dispute how many Hispanic opportunity districts are created under respective plans, with the state arguing that the redrawn CD-23 remains a Hispanic opportunity district.  

The state also contends that Latino Task Force proposals for a Hispanic opportunity district in North Texas, as well as MALC proposals for CD-10 and CD-28, result in an unconstitutional racial gerrymander because they are not reasonably compact.  

The Task Force strongly disagrees on compactness, noting that “the State’s enacted congressional redistricting plan has very poor compactness scores in the Dallas-Fort Worth area … . Put another way, the State is comfortable with its own non-compact Anglo majority districts in the region, but not with [proposals from Hispanic groups].” 

Here are the briefs:

Texas Latino Redistricting Task Force:

http://tinyurl.com/634kyzr

MALC:

http://tinyurl.com/3qeu8s2

Travis County plaintiffs:

http://tinyurl.com/3jkdxbd

NAACP:

http://tinyurl.com/3eny5zf

Dutton (Perez) plaintiffs:

http://tinyurl.com/3el5sx8

State of Texas:

http://tinyurl.com/4xb5ogj