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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[The second in a series about the remaining major disputes about the Texas maps]

The place where the San Antonio court’s interim congressional map arguably differs the most from the D.C. court’s section 5 decision is the treatment of CD-25 - the district formerly represented by Congressman Lloyd Doggett.

Here’s a backgrounder.

The old map (Plan C100) 

Before redistricting, the populous southeastern part of Travis County was part of CD-25, a sprawling multicounty district in Central Texas created during Texas’ infamous mid-decade redistricting.

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Although Travis County made up only a small part of the district in physical terms, the Travis County portions of the district contained 57.6% of the district’s population.Likewise, the district contained roughly 47% of the total population of Travis County.

By total population, the district was 49.8% Anglo, 38.8% Hispanic, and 8.7% African-American. By citizen voting age population, the district was 63.1% Anglo, 25.3% Hispanic, and 9.1% African-American.

Demographically, the district was unique among Democratic leaning districts in Texas in that it was majority Anglo by citizen voting age population - a fact that would later play a major part in disputes about whether the district enjoyed protection under the Voting Rights Act.  

Redrawing the map (Plan C185)

Probably not surprisingly, when it came time to redraw maps, CD-25 was early on squarely in the sights of Republican mapdrawers - both in Washington and in Austin.

Fairly early on, proposals circulated behind the scenes among Republican lawmakers by Congressman Lamar Smith talked about removing the existing portions of Travis County from CD-25 and placing them in a new Austin-San Antonio district - and rearranging the rest of the Travis County portions of CD-25 so the effect would be that CD-25 would become more Anglo and substantially more Republican.

Perhaps notably, one of the redistricting plaintiffs - the Texas Latino Redistricting Task Force - agreed with the concept of an Austin-San Antonio Hispanic opportunity district, drawing a version of such a district in its Plan C122 (though its proposal did not discuss what to do with the rest of the old CD-25).

Although there was debate among Republican legislators and members of Congress about other parts of the Smith proposal, that debate did not extend for the most part to the Travis County portions of the map. When the Texas Legislature met in the summer of 2011 to take up congressional redistricting, it adopted concepts in the Smith proposal in Central Texas with only minor modifications.

The effect of the new map on CD-25 was dramatic. CD-25 shifted its orientation completely - changing from a district running southeast from an eastern Travis County core into a district running in the opposite direction, from a new western Travis County core northward to the borders of Tarrant County.

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Litigation

A group of Travis County litigants, including State Rep. Eddie Rodriguez, challenged Plan C185 on the grounds that dismantling CD-25 deprived African-Americans and Hispanics in the district of the ability to elect their candidate of choice.

Although the district was majority Anglo, they argued that African-Americans and Hispanics had been able to form effective coalitions with Anglo voters. While they agreed that CD-25 was not a district that a court could be required to create anew under section 2, they argued that dismantling a performing district, when it arose naturally, violated both section 5 of the Voting Rights Act and the Equal Protection Clause of the Constitution.

The Travis County litigants also joined in arguments that Plan C185’s treatment of African-Americans and Hispanics was intentionally discriminatory.

The interim map - round one (Plan C220)

When it came time to draw temporary maps for the 2012 election, the first interim map produced by the San Antonio court included a version of CD-25 that substantially favored the Travis County litigants’ claims, recreating CD-25 as a compact Travis County and Hays County district.

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The district would have included 61% of the population of Travis County, with the Travis County portions of the district making up 90% of the district’s total population. Significantly, from the standpoint of the Travis County plaintiffs, the bulk of the people in the new district also would have been residents of the old CD-25.

To accommodate the change while at the same time creating a new Hispanic opportunity district in Central Texas, the court significantly redrew congressional districts in Bexar County. This had the effect of removing CD-28, represented by Congressman Henry Cuellar, from Bexar County.   

The State of Texas filed an emergency appeal with the Supreme Court challenging the interim map, including the court’s treatment of CD-25.

The Supreme Court 

On appeal, the Supreme Court issued a short but complex 11-page unanimous opinion that did not address CD 25 specifically. However, the court sent the case back to the San Antonio court with direction that the court was to defer to the state’s legislatively enacted map unless it found that the plaintiffs were substantially likely to prevail on their section 2 claims or that section 5 claims were “not insubstantial.” 

The interim map - round two (Plan C235)

After the Supreme Court’s ruling and a fast and furious round of additional briefing and hearings, the Latino Task Force and State of Texas announced that they had agreed to a compromise map that, in Central Texas at least, preserved the Texas Legislature’s plan in whole.  That compromise became the basis of the court’s Plan C235.

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In its opinion explaining the reasons for adoption of the compromise in Central Texas portions of the map, the San Antonio court punted to the D.C. court as far as CD-25 went.

The court explained “as a factual matter … the Court cannot conclude at this time that the dismantling of CD 25 was motivated by a discriminatory purpose as opposed to partisan politics” and that “serious and difficult questions remain to be decided in the D.C. Court regarding whether (1) African-American voters, in coalescing with other voters, had an ability to elect the candidate of their choice in benchmark CD 25, (2) assuming that they did, whether such ability would be protected under § 5, and (3) assuming it would, whether there was in fact retrogression in the enacted map.”

The D.C. court’s opinion

In its preclearance opinion, the three-judge panel agreed with the Travis County litigants that crossover districts were protected under section 5 of the Voting Rights Act:

[A]lthough section 2 does not require states to draw new crossover districts, we read section 5’s ban on retrogression to extend protection to districts in which minority voters have demonstrated an ability to elect their preferred candidates via either assembling a coalition or attracting sufficient crossover votes, or both.  

The judges split 2-1, however, on whether the Travis County litigants had demonstrated that CD-25 was such a district.

Two of the judges - Judge Collyer and Judge Howell - found that it was, holding “[b]oth factual and expert testimony establish that Anglos do not control the election outcomes in CD 25 and that power is shared equally among Hispanics, Blacks, and Anglos in this district, giving minority voters the ability to elect their preferred candidates.”

Judge Griffith disagreed, however, in a dissent. While conceding that “the line between influence and protected crossover districts is admittedly difficult to draw,” Judge Griffith argued that the evidence “does not show that minority voters are at the helm, and, thus, that they themselves have an ability to elect in CD 25.” Judge Griffith explained:

[W]e have heard testimony and received expert reports that minorities are essential to victory in Travis County, but that is not enough to find that CD 25 is a protected crossover district. To protect CD 25, we must find that minorities themselves have an ability to elect in CD 25 - that they lead the coalition there. It is not enough that they provide the margin of victory in a competitive Democratic district … [Otherwise,] it is hard to see what Democratic district in Texas would not be so protected.

The parties’ stands

The State of Texas has appealed the preclearance decision to the Supreme Court, where it is on hold pending a decision in Shelby Co. However, the state also has told the San Antonio court that even if CD-25 is upheld as a protected district, the interim map fixes any problem arising from elimination of the district by creating a new heavily non-Anglo district in North Texas (CD-33).

On the other hand, the Travis County plaintiffs, along with a number of other plaintiff groups, have told the San Antonio court that it can and is legally required to fix “the unconstitutional fragmentation in Travis County.”

Proposals for map fixes

So far, State Rep. Yvonne Davis (D-Dallas) has the only formal proposal (Plan C236) for how to redraw the Travis County map, but others likely will be coming.

Under the Davis proposal, CD-25 would be redrawn to match the configuration in the original court-drawn interim map (Plan C220).