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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Winners

The State of Texas. 

The state clearly is a winner because it doesn’t have to use the ‘standardless’ interim maps drawn by the San Antonio court.

Jurisdictions in the same boat as Texas in the future also won’t have to fear that seeking preclearance through the district-court route (rather than DOJ) will end up with a court drawing an interim map that disregards the jurisdiction’s map in the event the process can’t be completed in time (though their primary schedules still could be at risk).

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Redistricting plaintiffs. 

If the state is a winner, so are redistricting plaintiffs because the state also doesn’t get to use its maps on an interim basis as the state urged.

Instead, the San Antonio court has been given permission to rule on the claims tried before it and to guesstimate the outcome of the preclearance case.

That might sound basic.  But a lot of the confusion over the interim maps resulted from suggestions in case law that seemed to say that courts drawing interim maps could not decide preclearance issues and also could not rule on the section 2 claims tried before it until after the Justice Department or a three-judge panel in Washington had made a preclearance determination.

If the outcome of the Supreme Court’s opinion is simply that courts have to try to make interim maps look something like the permanent remedial maps that they ultimately will draw after the conclusion of preclearance proceedings, that doesn’t seem like a particularly bad outcome for redistricting plaintiffs.

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Section 5. 

Some observers feared when the Supreme Court took the case that it might find a way to use the case to invalidate section 5 of the Voting Rights Act on constitutional grounds - or require so much deference to a state’s maps that would end up effectively being the result.  

The first didn’t didn’t happen, though the court did, in passing, express concerns about the intrusion that preclearance obligations imposed on states and jurisdictions subject to section 5.  

As for the second, the Supreme Court’s ruling expressly allows courts drawing interim maps to adjust maps if it finds a ‘reasonable probability’ of a section 5 violation.  What reasonable probability means is a bit up in the air, but the end result isn’t nearly as draconian as some speculated.

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Congressman Lloyd Doggett (CD-25). 

Lloyd Doggett emerges from today’s ruling with what a number of observers think a pretty good chance to have his current district remain viable - even if its contours change from the earlier court-drawn interim map.  

The D.C. court has already ruled that ‘crossover districts’ can be protected under section 5 of the Voting Rights Act.  Now, the Supreme Court has said that the San Antonio court can adjust maps to address probable section 5 violations.  

Doggett still needs to show that his current district is, in fact, a crossover district, but he’s two-thirds of the way home.

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Grassroots candidates.

In a lot of parts of the state, the Texas Legislature’s map and the court-drawn interim map aren’t that different, meaning candidates have a pretty good sense of what their district will look like - even if they don’t know every last detail.  

With added time because of a delayed primary, an unknown grassroots candidate gains an unexpected gift, with more time to knock doors, attend backyard BBQs, and become known.

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Sen. Jeff Wentworth.

The mess this year certainly has more people looking with fresh eyes and new interest in Wentworth’s proposals for a bipartisan redistricting commission.

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Redistricting lawyers and law professors. 

The Supreme Court’s opinion had enough ambiguity to ensure more litigation, probably not only this decade but in future decades.  

There’s plenty to keep law professors busy writing and speculating as well. 

Losers

Candidates in general. 

The primary is almost certain to be moved back, or split.  In the mean time, rearranged lives remain on hold as everything continues in limbo.

Moreover, not only legislative and congressional candidates are affected. The December agreement on the filing deadline says that when the filing period eventually reopens, people will be able to file for any office on the ballot - from precinct chair to U.S. Senate.  

Judicial and other down ballot candidates who hadn’t drawn an opponent when filing closed on December 19 may yet end up with one - something that a number are none too happy about.

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Congressman Quico Canseco (CD-23).

It’s hard not to see freshman Congressman Quico Canseco (CD-23) as somewhat of a loser in all this.  

As noted, it’s not wholly clear what ‘reasonable probability’ of a section 5 violation means, but the state’s own expert witness said on the stand in the San Antonio trial that the state’s map diminished the voting strength of Hispanics. And that was the state’s witness. (More on that here)

As of that weren’t bad enough, then there’s this email which came to light this week in the preclearance case. If there were ever a district that seemed ripe for a finding of reasonable probability, CD-23 would seem to be it.

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Republican incumbents. 

If the primary is split, a lot of Republican incumbents aren’t likely to be happy, at least if the reaction last December is any gauge.  

A number of Republican incumbents are facing tea party challenges, and, as RPT chair, Steve Munisteri, acknowledged at December hearings on the election schedule, a split primary could be decided in a low turnout primary - possibly dominated, as he described it, by a ‘certain segment of the body politic.’

Last December, things reached an almost comic level with Republican lawmakers showing up at private discussions between Democratic and Republican party officials about the election schedule, demanding to be heard.

It remains to be seen to what extent tension lines within the Republican party re-emerge during discussions over the next couple of weeks about the primary date.

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County governments.

If the primary ends up being split, county governments could end up shouldering a good part of the added cost.  Tarrant County officials have said their extra cost could be as much as $700,000.  For the state as a whole, it could run into the millions of dollars.

In the same vein, county election officials also aren’t going to be happy if they are further forced to compress deadlines in order to try to keep to an early April primary.  They’ve made perfectly clear that they didn’t think the schedule as it was gave them adequate time to get everything done without risk of significant errors.  If there’s a move to give them even less time … 

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Political consultants, campaign staff.

With candidates and donors waiting to see where the final legislative and congressional lines are, a lot of campaigns have delayed hiring staff and consultants.  That’s hitting the pocketbooks of consultants and staffers who were expecting to be fully engaged (and paid) at this point. 

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The Republican and Democratic parties.

If the need to go back to the San Antonio court for more proceedings means that the parties’ state conventions have to be moved from their early June dates (and that’s a possibility as much as people will argue otherwise), both parties will take a financial hit from canceling contracts.  They’ll both also have to scramble to find suitable alternative space for large conventions.

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District courts drawing interim maps. 

The job for district courts drawing interim maps just got more complicated. Now, courts drawing interim maps have to take evidence on section 5 issues (which are tried in D.C. before a different panel) and guess what another set of three judges will do.

That’s a situation that’s almost unprecedented in law.

  1. texasredistricting posted this