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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Preclearance trials in district court are pretty rare occurrences.  

That’s because jurisdictions required to get preclearance under section 5 of the Voting Rights Act more typically choose to submit proposed maps to the Justice Department for administrative review - an alternative route generally thought of as more expeditious.

But this year, Texas has chosen, for the first time in its history, to place the fate of its maps wholly in the hands of the D.C. court. (On one prior occasion, Texas both sought administrative preclearance and filed suit in district court, but the suit was mooted when DOJ granted preclearance.  It’s never before relied solely on judicial review of its maps.)

Here’s a rundown of what to expect:

The Judges

Under the Voting Rights Act, cases involving statewide redistricting plans are tried before a panel of three judges, at least one of whom must be a court of appeals judge.  

The first judge is the district court judge who received the case in a random assignment when the case was filed. The second and third judges on the panel are appointed by chief judge of the circuit - in this case, Chief Judge David Sentelle of the D.C. Circuit.

The three judges who will be hearing and deciding the Texas preclearance case are:

Judge Rosemary Collyer.

Judge Collyer was appointed to the district court bench in January 2003 by President George W. Bush.

Before joining the bench, she was a partner in the Washington, D.C., law firm of Crowell & Moring LLP from 1989 to 2003. Judge Collyer served as General Counsel of the National Labor Relations Board (1984-89) and Chairman of the Federal Mine Safety and Health Review Commission (1981-1984).

Judge Collyer graduated from the University of Denver College of Law (1977) and Trinity College Washington, D.C. (1968). She practiced law with Sherman & Howard in Denver, Colorado, before her government service. Judge Collyer is a member of the College of Labor and Employment Lawyers and the American Bar Association Foundation.

Judge Thomas Griffith.

Judge Griffith joined the D.C. Circuit in 2005 after being appointed by President George W. Bush.

Judge Griffith received his undergraduate education at Brigham Young University, where he graduated summa cum laude in 1978, before attending the University of Virginia Law School where he graduated in 1985.

After working in private practice in North Carolina and Washington DC from 1985-1995, Judge Griffith served as Senate Legal Counsel (the Senate’s chief legal officer) from 1995-1999.  

From 2000-2004, he was general counsel of Brigham Young University.

Judge Griffith was appointed to the DC Circuit after President Bush withdrew the nomination of Miguel Estrada, whom the Democrats had successfully filibustered for over two years.  Judge Griffith was confirmed by the Senate by a vote of 73-24 in June 2005.

Judge Griffith is the author of 2007 panel decision in Davis v. FEC, which upheld the constitutionality of relaxed contribution limits for opponents of self-financing candidates (later reversed 5-4 by the Supreme Court).

Judge Griffith is an adjunct lecturer at BYU Law School, where he teaches courses on presidential powers and judicial process.

By order of Chief Judge Sentelle, Judge Griffith is the presiding judge of the panel.

Judge Beryl Howell.

Judge Howell was appointed to the federal bench by President Barack Obama in July 2010 and confirmed by the Senate in December 2010.

Judge Howell received her undergraduate degree from Bryn Mawr in 1978 and graduated from Columbia Law School in 1983.

After a clerkship, she practiced with Schulte Roth & Zabel from 1985-1987 before joining the U.S. Attorney’s office in the Eastern District of New York, where she eventually became Deputy Chief of the Narcotics Section.

From 1993-1997, she served on the staff of the Senate Judiciary Committee as senior advisor to chairman Patrick Leahy and from 1997-2003 was the committee’s general counsel.

Following her government service, Judge Howell worked as executive managing director and general counsel of Stroz Friedberg LLC, a consulting and technical services firm, for which she headed the largest regional office in Washington, D.C.

What’s at issue at trial? 

At trial, Texas will have the burden of proving by a preponderance of evidence that its maps do not either (a) have a discriminatory intent or (b) result in ‘retrogression,’ i.e. have a discriminatory effect on the voting strength of minorities.

If the state does meet its burden, the district court will decline to grant preclearance.

Until and unless the maps are precleared, they cannot be used.

Who’s on the other side?

When a state or other covered jurisdiction asks a district court for preclearance, it does so by suing the attorney general of the United States, who then has the responsibility for representing the interests of the United States.

In some instances, as last week in Michigan, the attorney general will advise the court that he or she has no objection to a map after review and let the court know that the U.S. government consents to entry of an order granting preclearance.

In the Texas case, however, Attorney General Eric Holder has said, after review, that he believes that the state house and congressional maps (but not state senate map) both were drawn with discriminatory intent and have a retrogressive effect on minority voting strength.

He is joined in objecting to the maps by various parties who have intervened in the case, including State Senator Wendy Davis, the Texas Latino Redistricting Task Force, the Mexican-American Legislative Caucus, LULAC, the NAACP, and a group of Travis County residents.

Davis, LULAC, the NAACP, and Texas Legislative Black Caucus are challenging both the congressional and state senate maps.

How do you gauge whether retrogression occurs in a map?

At its simplest, a retrogression analysis starts by taking the current (pre-redistricting) map and calculating the number of districts in which minorities have the ‘ability to elect’ their candidate of choice.  The analysis then uses that map as a ‘benchmark’ to compare the new, legislatively enacted map.  

If the number of ‘ability to elect’ districts declines without a justifying explanation (such as the move African-American voters out of the inner cities into suburban areas), then retrogression occurs.

While that may sound simple in theory, it’s often a bit more complicated in practice, requiring that the court gauge a district’s actual and likely electoral performance using a ‘totality of circumstances’ test.

That test looks not only at an old and new district’s population demographics but, for each existing and proposed district, compares (among other factors):

  • the degree of racially polarized voting
  • voter registration rates 
  • minority voter turnout
  • education and employment levels
  • actual and reconstituted election results

In multiethnic districts where no group forms a majority, the court also will look at whether minority groups form a cohesive voting block either with each other and/or with crossover Anglo voters.

In the summary judgment phase, Texas pushed the court to adopt a more rigid, bright-line test that would define ability-to-elect districts as districts where either the African-American voting age population was over 40% or the Latino citizen voting age population was over 50%.  The court, however, rejected the state’s proposed test as too simplistic.  More on the court’s earlier rulings here.

What do the parties say about retrogression?

STATE HOUSE

  • DOJ argues that the proposed state house map (Plan H283) reduces the number of ‘ability to elect’ districts from 50 to 45.  DOJ contends that the reduction includes three Hispanic ability-to-elect districts (HD 33, 35, and 117) and one district (HD 149) that in the benchmark plan “provide[d] a cohesive minority coalition of Asian, Hispanic, and Black voters with the ability to elect.”
  • The Texas Latino Redistricting Task Force joins with DOJ in making objections about HD 33 and HD 117.  In the case of HD 33, the Task Force asserts that the state improperly tries to claim that the loss of HD 33 is offset by transformation of HD 148 into a Hispanic opportunity district. However, the Task Force argues that HD 148 was, in fact, already a Hispanic ability-to-elect district based on electoral performance, if not demographics.  The Task Force also accuses the state of using demographic percentages to hide the fact that HD 117 performs substantially less well under the new map than the old map, despite an increase on paper in the number of Hispanics in the district.

CONGRESS

  • DOJ’s retrogression arguments on the congressional map (Plan C185) focus on CD-23 and CD-27.  Although the state contends that it replaced those districts with two new districts (CD-34 and 35), DOJ asserts that the net effect is to leave minority voters three seats short of population proportionality.
  • The Travis County intervenors and Davis intervenors also argue that retrogression occurs in the congressional map as a result of the state’s dismantling of CD-25, which they contend was a rare, but effective, crossover district.

STATE SENATE

  • State Senator Wendy Davis, LULAC, the Texas Legislative Black Caucus, and NAACP argue that SD-10 (Davis’ district) has become an effective coalition district, with a combined minority population of 52.4%, but nonetheless is dismantled by “cracking and fracturing minority communities into Anglo-controlled districts.” 

How do courts determine if there is discriminatory intent in adopting a map?

At the end of the day, this is one of those ‘know it when you see it’ areas.

In the summary judgment phase, Texas argued for a narrow interpretation of discriminatory intent that would focus on overt evidence of actual bias against minorities (e.g., “I dislike Hispanics and, therefore, oppose creating any more Hispanic seats”).  Anything less demanding, the state argued, would create constitutional concerns since section 5 states would be subject to more rigorous standards that those states not covered by section 5.

DOJ and minority groups countered that discriminatory intent could exist even where there was no animus, citing, as an analogy, an Anglo homeowner who harbors no ill-will toward African-Americans but nonetheless joins in a pact with neighbors not to sell their houses to African-Americans because of the negative impact such sales would have on property values in the neighborhood.  They argue that discriminatory intent would be present in that instance even if the intent was not invidious.  

In the end, the court did not adopt a single standard.  Instead, it held in its summary judgment ruling that the question of discriminatory intent required “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”

What are the parties’ arguments on discriminatory intent?

The argument on discriminatory intent breaks down into two parts.  

The first part focuses on the state’s failure to take into account huge Hispanic population growth (65% of the state’s total population growth over the last decade) and what DOJ and the intervenors contend was a careful effort to ‘pack and crack’ minority populations so as to diminish their voting power.  

As explained in the DOJ’s brief with respect to the congressional map:

"[D]espite the fact that a huge increase in the Hispanic population drove the State’s population, Texas chose not to create any new additional minority ability-to-elect districts and to remove hundreds of thousands of minority voters from districts in which they could elect a candidate of choice under the existing plan.  As part of this concerted effort, a number of cohesive minority communities were packed into existing ability-to-elect districts to avoid creating any new such districts.  Contemporary documentary evidence shows that the plan’s developers purposely sought to fashion districts with a superficial appearance of minority electoral opportunity, which in reality diminished the influence of minority voters. The high number of precinct splits in the districts at issue further illustrates the extent to which lines were drawn on the basis of race to the detriment of minority voters."

On the state house map, the NAACP and Texas Legislative Black Caucus, likewise, argue that, where it was necessary to eliminate districts (because a county lost state house seats), the state consistently chose to eliminate districts that had “been emerging as effective minority opportunity districts,” citing the examples of HD 101 and 106 in Dallas County.  

The Latino Task Force also points to the decision to eliminate one of two Latino majority districts in Nueces County instead of an Anglo district and the fact that these adverse decisions were occurring against the backdrop of a session dominated by legislation that many perceive as anti-minority.

The second part of the discriminatory intent argument focuses on the rushed redistricting process - with hearings, for example, on short notice on Saturdays and Sundays- and the exclusion of minority representatives from much of the process.

Taken together DOJ and the intervenors argue that the evidence shows a well-organized effort to ensure that minorities were kept “in their place.”

The state has not outlined its argument on discriminatory intent since the court’s December 22 summary judgment ruling, but its argument is expected to be that the process targeted Democrats, not minorities, and was driven by legitimate goals such as incumbent protection.

How long will the trial last? 

The trial is set to run from January 17-26, with closing arguments set a week later on February 3.

For about half the trial, all three judges will be present in the courtroom. For the rest of it, there will be two judges present. 

Here’s the full schedule and the parties’ joint witness list.

 When will the court rule?  

The court hasn’t signaled that (yet), but the parties are saying that they think the court will rule reasonably quickly after closing arguments on February 3.

Past is not prologue, but, in the summary judgment phase, the court held a hearing on November 2 and issued an order denying the state’s request for summary judgment on November 8 (though its full opinion did not come until shortly before Christmas).  Something similar could happen here.

Of course, that won’t be quick enough to avoid some tension with the Texas election schedule.  February 3 is, after all, two days the reset closing of the filing deadline, and only a couple of weeks before mail ballots are supposed to start going out.  Unless the Supreme Court somehow makes it possible to put interim maps in place before then, some adjustments to the election schedule very likely will need to be made.

How will the court’s ruling affect maps?

After the D.C. court rules, the action will shift back to Texas and the three-judge panel in the San Antonio case.  

If the D.C. court grants preclearance of a map under section 5 of the Voting Rights Act, the San Antonio court will rule on the section 2 and other claims tried before it back in September and remedy any problems it finds.

If the D.C. court denies preclearance, the San Antonio court’s job becomes two-part, since the court will need both to fix the problems identified by the D.C. court and also to fix any problems it finds in the San Antonio case.

In either case, the resulting maps then would become Texas’ permanent maps for the rest of the decade, unless the Supreme Court reverses on appeal (in either case) or the Texas Legislature decides that it will redistrict again in 2013 or 2015 or, what the heck, even later.

Depending on what the Supreme Court orders in the interim map appeal, the maps also could end up being the ones we use for the 2012 cycle, though it is also possible the court could put into place a process for drawing interim maps.

Can the losing party appeal?

Yes, any appeals would go directly to the Supreme Court.  

And given the probable timing of a decision from the district court, there still likely would be time to allow an appeal to be briefed and argued this term if the Supreme Court wants.  

In fact, in one of the lighter moments during oral argument in the interim map appeal, Chief Justice Roberts joked about an appeal in the preclearance case.