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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Yesterday’s SCOTUS decision certainly was a loss for Democrats and a win for Republicans insofar as it knocks out some certain, or likely, Democratic gains under the interim maps.

But its ultimate effect may be harder to predict.  In fact, Steve Munisteri, chair of the Republican Party of Texas, was muted in his reaction yesterday, saying on the party’s website:

Until the panel issues new orders, we will not know how many legislative districts will likely be Republican and how many will be Democrat. Thus, any conclusion as to the overall result of today’s ruling by the Supreme Court will have to be withheld until that time. 

Rick Hasen has made the case for why the ultimate maps will end up looking substantially more like the state’s maps.  

But there’s at least a case to be made that Democrats may end up faring better than some initial predictions.

CONGRESS

On the congressional map, I’ve said earlier today (here) that I think there is a good chance that changes to CD-23 will stand.  CD-25 also may end up surviving in something resembling a competitive district (though it may not be as Democratic leaning as today).  If so, that’s a +2 for Democrats on the state’s map.

The flip side is that Democrats could lose the court-drawn CD-33 since the Supreme Court questioned creation of a coalition district.  

Even if that happens, however, the San Antonio court has yet to rule on section 2 claims for a Latino majority district in the DFW Metroplex.  That’s a district that appeared in draft plans by Congressman Lamar Smith (R- San Antonio) as well as in bipartisan proposals by Congressmen Quico Canseco and Henry Cuellar. Many observers had viewed the case for a new North Texas Latino district as compelling and widely expected that the court would create such a seat.  There was a lot of surprise when the court didn’t include one in its interim map.

Now, it may be that the court concluded that it couldn’t draw a Latino majority district based on the strictures of section 2 case law.  

Or it could be that the court simply didn’t create such a district because it would mean too many complicated changes to make in a short period of time, particularly in Dallas County where the court left much of the state map’s basic structure intact when creating the interim map.

If the court concludes that it should go ahead and create a (Democratic leaning) Latino majority seat, that would be another +1 for Democrats over the state’s map.  

STATE HOUSE

On the state house side, many of the gains for Democrats in urban counties were as a result of a reduction of population deviations.

The Supreme Court was critical of the San Antonio court’s reduction of population deviations.  But the justices did not get into claims by minority groups that the state’s use of population deviations was itself a product of a discriminatory policy (in short, Anglo districts are often underpopulated and minority districts overpopulated, resulting in fewer seats where minorities have a voice).

If the discrimination claim holds up, the San Antonio court may yet find itself equalizing district populations in ways that help Democrats.  On the other hand, it would be doing so starting with the state’s map rather than the 2001 benchmark map, so district partisanship may yet look different.

In addition to claims about population deviations, there are at least 5 state house districts that the Justice Department and minority groups contend were made ineffective as Hispanic ability-to-elect districts under the state’s map.

In other words, it still may be a jump ball on this one.

STATE SENATE

Disputes about the state senate map come down, in their entirety, to just one district: SD-10, represented by Wendy Davis.

The state senate maps get no substantive discussion in the Supreme Court’s opinion. In fact, the word ‘senate’ appears only twice in the entire opinion, both in the background section.

The interim map restored SD-10 to its benchmark configuration (literally, down to the last precinct) and made corresponding changes to adjacent districts.  

Davis’ claim is that SD-10 is protected under section 5 as an effective coalition district.

That claim may or may not carry the day in the preclearance case, but it’s basically the same claim the Travis County parties are advancing on the congressional map.  If Davis can satisfy the court that her district - on the facts - is protected under section 5 then the changes made by the San Antonio court to the state senate may yet stand.