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.
Posts I Like

[This is the first in a series of articles taking a closer look at open issues over the Texas congressional and state house maps.]

_____

One of the potentially bigger remaining disputes over the congressional map is over whether the interim map adequately addresses treatment of non-Anglo communities in North Texas, particularly the Hispanic community. Call it the argument over a ninth Hispanic opportunity district.

The current map (Plan C235)

Right now, the map, as redrawn last year by the San Antonio court, includes 7 or 8 Hispanic ‘ability to elect’ districts (depending on whether you fully count CD-23). They are:

CD-15 (Hinojosa)
CD-16 (O’Rourke)
CD-20 (Castro)
CD-23 (Gallego)
CD-28 (Cuellar)
CD-29 (Green)
CD-34 (Vela)
CD-35 (Doggett)

Of these districts, CD-29 is located in Harris County and CD-16 is in El Paso County. The remaining six Hispanic opportunity districts are all in Central and South Texas.

The question the San Antonio court will have to take up is whether there is an opportunity for another such district for Hispanic voters in North Texas.

Looking back: The DFW Metroplex prior to 2011 and under the legislatively enacted plan (Plan C185)

Before the 2011 reapportionment and redistricting cycle, the DFW Metroplex took in all or portions of nine congressional districts.

However, of these, only one - CD-30 represented by Congresswoman Eddie Bernice Johnson - was an ‘ability to elect’ district for non-Anglo voters - despite the fact that the region’s non-Anglo population had grown rapidly over the last decade.

When it came time to draw new maps, Congressman Lamar Smith pushed behind the scenes for a version of the congressional map that would have put one of the state’s four new congressional districts in the Metroplex - labelled CD-33 in the map below - which would have brought together several large blocks of African-American and Hispanic voters in Dallas and Tarrant counties:

image

However, Smith’s efforts drew sharp and public criticism from Congressman Joe Barton, who pushed to have all four of the state’s new congressional districts drawn instead to elect the Anglo candidates of choice (i.e. Republicans).

The Texas Legislature failed to take up congressional redistricting during its 2011 regular session, but it ultimately redrew congressional lines in a early summer special session, adopting a map (Plan C185) that sided with Barton. Instead of Smith’s CD-33, the Legislature’s map opted to create an Anglo-dominated, and strongly Republican, CD-33 by combining parts of southern Tarrant County with rural areas in Parker and Wise counties. That kept CD-30 as the only minority-opportunity district in the Metroplex:

Litigation

Not surprisingly, the North Texas parts of the legislatively enacted map immediately became a focal point in subsequent litigation.

Hispanic and African-American groups argued that drawing 9 of 10 of the region’s congressional districts to favor Anglo candidates of choice in a region as diverse as the Metroplex was accomplished only by significant, illegal fracturing minority communities in Dallas and Tarrant counties.

The treatment the region’s booming Hispanic community was especially contentious.

To get a sense of the dispute, take a look at the map below - showing a proposed North Texas Hispanic congressional district - CD-6 - drawn by the Texas Latino Redistricting Task Force. Setting aside the issue of whether such a district is legally required or compliant, the proposed district lines nevertheless are a pretty handy guide to where significant blocks of Hispanics live in Dallas and Tarrant counties. As drawn, the Task Force’s district would have contained a population that was 50.4% citizen voting age Hispanic and over 80% Hispanic in total population. All told, that’s a sizable portion of the Metroplex’s Hispanic population.

However, as the next map shows, the actual map adopted by the Texas Legislature splits that same population into 8 different congressional districts - seven dominated by Anglo voters and one (CD-30) effectively controlled by African-American voters.

In the subsequent court cases, redistricting plaintiffs made two separate legal claims about the Legislature’s map.

First, the Latino Task Force and Mexican-American Legislative Caucus argued that under the Supreme Court’s ruling in Thornburg v. Gingles, the density of the Hispanic population in North Texas and polarized voting patterns legally required courts to fix the map by drawing a Hispanic majority opportunity district in the Metroplex under section 2 of the Voting Rights Act.

Other plaintiffs made a variant of the Gingles argument, alternatively arguing that even if a Hispanic citizen voting age majority district could not be drawn, it was still possible to draw a district that had a combined African-American and Hispanic citizen voting age majority - and that such a district was equally mandated under Gingles.

In fact, they argued that not only one, but two, such districts were possible. CD-34 and CD-35 from Plan C204 show just one variant of a proposal for two such districts.

Secondly, the plaintiffs argued that even if Gingles did not require drawing new opportunity districts, the court still needed to remedy the Legislature’s intentionally discriminatory fracturing of African-American and Hispanic communities in Dallas and Tarrant counties, which they contended violated both section 2 and section 5 of the Voting Rights Act as well as the 14th and 15th amendments to the Constitution.

The interim map (Plan C235)

When it came time for the San Antonio court to draw interim maps for the 2012 election, it ultimately adopted a compromise map (Plan C235) offered by Congressman Henry Cuellar and the Latino Task Force that hewed very closely to the original Lamar Smith proposal for North Texas.

In hearings on the proposed compromise, proponents of the map were at great pains to describe the new district not as an ability-to-elect district or a coalition district but, in the words of the Task Force’s Nina Perales, as a ‘just there’ district that fixed some of the worst parts of the fracturing and gave African-American and Hispanic voters a better shot at electing their candidates of choice.

In its opinion supporting the interim map, the court explained that it adopted the compromise because it found claims of “packing and cracking” in the Legislature’s map to be “not insubstantial.”  However, at the time, the court decided against drawing a more clearly Hispanic opportunity district in the Metroplex, expressing questions about whether a Gingles district could be drawn that was both “reasonably compact” and not drawn overly on the basis of race.

The 2012 election

In the hotly contested Democratic primary that followed, 11 candidates competed for the nomination.

But the race very quickly turned into a battle between State Rep. Marc Veasey, who is African-American, and Hispanic trial lawyer (and former state representative) Domingo Garcia.

The primary election and the subsequent runoff also divided substantially along ethnic lines, with the district’s Hispanic voters favoring Garcia by large margins and African-American voters favoring Veasey by equally large margins.

In the November general election, Veasey easily prevailed 72.3% to 27.5%, carrying both Hispanic and African-American voters.

The arguments for further change

So where does this leave things?

Several redistricting plaintiffs have raised concerns that the court-drawn map did not go far enough to give Hispanic voters in North Texas an opportunity to elect their candidate of choice.

MALC in its advisory to the court told the court that:

[Although] it could be argued that this Court’s elimination of the enacted plan’s fragmentation of minority voters through gerrymandered lines in the Dallas and Tarrant County area addresses the discriminatory intent found by the D.C. Court to some degree; however, it certainly does not systematically address the issue.

An advisory filed by six other redistricting plaintiffs went even further arguing that an additional opportunity district needs to be drawn in the Metroplex:

[W]hile the interim map did create a new effective African-American ability to elect district (CD 33), the interim map did not fully remedy the vote dilution in the DFW region … [T]he interim plan in that region unnecessarily isolated and fragmented significant minority population into Anglo-controlled districts and fails to fairly reflect minority voting strength in the region and comply with Section 2 of the Voting Rights Act. Creation of a new third minority opportunity district in the DFW area is the only viable remedial option.”

If section 5 survives Shelby County, these arguments will factor into remedial maps drawn by the court. However, because the remaining claims about North Texas are based on section 2 - which is not the subject of legal challenges in Shelby County - and on claims of intentional discrimination in violation of 14th and 15th amendments to the Constitution, they are not dependent on the outcome of Shelby County

The position of the Latino Task Force - which alone among plaintiff groups supported the interim map - is somewhat ambiguous.  Although the Task Force’s court advisory reiterated its belief that there should be nine Hispanic opportunity districts, its map comments in the advisory were directed at the legislatively drawn map (Plan C185) and not the interim map (Plan C235). From the filing, it is not clear whether the Task Force is happy with CD-33 in the interim map or whether it believes that additional changes might be needed.

Proposals for map changes

So far, proponents of additional change have not formally submitted proposals to the San Antonio court.

However, State Rep. Yvonne Davis (D-Dallas) did submit a proposed congressional map (Plan C236) to the Texas Legislature as a part of a bill to redraw the map. Davis’ proposal would add a third, heavily Hispanic opportunity district in Dallas County (CD-3 in the map below) while transforming CD-33 into a Tarrant County based district.

Earlier map proposals that would have drawn two districts spanning Dallas and Tarrant counties are other possibilities for creating two districts - if the court decides an additional opportunity district is needed.

The State of Texas’ position

For its part, the State of Texas argues that the interim map does more than enough and that “by creating CD 33, the interim plan accommodates the D.C. Court’s findings relating to the separation of minority communities in Tarrant County and corrects the Legislature’s failure to create a new minority ability district in North Texas.”  

However, the state also takes issue with any characterization of CD-33 as “an ability-to-elect or opportunity district after one election cycle.”

Somewhat confusingly, the state also argues that CD-33 is a replacement for the old CD-25, the Central Texas district represented by Congressman Lloyd Doggett.

Next up:  A look at Travis County and disputes about what happened to the old CD-25.