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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[Fourth in a series. Earlier pieces here, here, and here.]

In addition to fights over the congressional map, the parties also still have a number of disputes about the state house map.

Because the redistricting of state legislative districts uses slightly different rules and standards, the issues are also vary a bit.

Unequal population

One issue concerns whether the population variances between districts in the state house map were used for constitutionally impermissible purposes.

A little background:

Unlike congressional districts (which the Supreme Court has said have to have exactly equal population give or take a person), state house districts can vary a bit more in size.

In fact, under a 1983 Supreme Court decision, the size of legislative districts can have a top-to-bottom deviation of up to 10% - meaning that the least populated district can be up to 10 percentage points smaller than the largest. This allows states the ability to continue to using race neutral, traditional redistricting principles, such keeping counties or cities intact within a single district.

The dispute in the Texas case is over whether the Texas Legislature improperly used this flexibility to systematically overpopulate urban Hispanic districts and underpopulate nearby Anglo-controlled ones in order to dilute Hispanic - and in some cases also African-American - voting power.

The redistricting plaintiffs say yes, citing the Supreme Court’s 2004 ruling in Larios v. Cox, which affirmed a lower court decision striking down a Georgia redistricting plan. The plan in that case had overpopulated suburban Republican districts and underpopulated Democratic ones but had otherwise adhered to the 10% deviation rule. The trial court ruled that the deviations were not based on “any legitimate, consistently-applied state interests but, rather, resulted from the arbitrary and discriminatory objective of increasing the political power of southern Georgia and inner-city Atlanta at the expense of voters living in other parts of the state.”

 The question for the San Antonio court is whether the state had a “legitimate, consistently applied” non-partisan and non-race based reason for the deviation in the size of districts in the state house map. 

If the court finds that use of the 10% rule was not justified in this case, it could require a rebalancing of districts in the state’s urban and, in some cases, suburban counties. In Dallas County, for example, the current top-to-bottom deviation is 8.88% compared to a deviation of 0.46% in the court’s original interim map (Plan H302).

Improper Use of the County Line Rule

Another dispute involves that states’s application of the Texas Constitution’s county-line rule (Article III, section 26).

That rule, as interpreted by courts, requires districts apportioned to counties to remain within the county lines (with the limited exception that the excess population in a county may be included in another adjacent district).

The Mexican-American Legislative Caucus argues that the state used the county-line rule “as a shield from its obligations to draw any new Latino opportunity districts that involve cutting county lines” and that state redistricting requirements, like the county-line rule, must yield to the mandates of section 2 of the Voting Rights Act. 

Intentional Fragmentation 

In the other parts of the map, redistricting plaintiffs contend that the Texas Legislature intentionally diluted African-American and Hispanic voting strength by fragmenting cohesive communities.

This fragmentation, they argue, is especially pronounced in the DFW Metroplex, where the court-drawn interim map (Plan H309) adopted the Texas Legislature’s map (Plan H283) without any changes.

For example, prior to the 2011 round of redistricting, HD 101 was a compact district in eastern Dallas County, taking in all but small parts of Mesquite plus the adjacent town of Sunnyvale and heavily African-American and Hispanic Balch Springs.

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However, under the plan adopted by the Legislature and incorporated by the court into its second interim map, the city of Mesquite was split into three districts, with part of the city’s non-Anglo population drawn into HD 107 and other parts drawn into HD 110 and HD 113. The city of Balch Springs, where non-Anglos now make up nearly 75% of the population, was similarly split.

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On the other side of Dallas County, the oddly shaped taproot in the redrawn HD 105 is another example cited by the plaintiffs of fragmentation.

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The portions of the city of Grand Prairie to the west of the taproot include African-American neighborhoods separated out from African-American neighborhoods within the taproot.  

The result is that HD 104, a Hispanic opportunity district represented by State Rep. Roberto Alonzo, becomes 19.2% African-American CVAP, while HD 105, a seat represented by an Anglo Republican Linda Harper-Brown, becomes several points less African-American than under the court’s initial interim map.

The plaintiffs’ pleadings point to other examples of fragmentation in Harris, Fort Bend, Bell, and McLennan counties.

The plaintiffs say this “purposeful fragmentation of minority voters … violated the equal protection principles laid down” by federal courts.

If the court agrees, it would have broad power to fix the fragmentation, much as it fixed similar fragmentation in the congressional map by creating CD-33 in the Metroplex.

Additional section 2 Hispanic majority districts

Finally, in addition to claims about intentional discrimination, redistricting plaintiffs also argue that several more Hispanic majority districts could have been drawn under section 2 of the Voting Rights Act.

The claim to these districts is based not on any intentional misbehavior but on polarized voting patterns and population density sufficient to draw a reasonably compact district.

One example is the West Texas district numbered HD 81 in Plan H205. That district would be anchored in Midland and Odessa and would have been 51.2% Hispanic citizen voting age population based on data available in 2011.

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Plan H205 also contained a proposal for an additional Hispanic majority district (numbered HD 84 in the map), which would be anchored in Lubbock and Amarillo and be 53% Hispanic CVAP.

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MALC’s court filings also say that an additional Hispanic majority district can be drawn based in Nueces County.

A final note

How these issues get addressed will depend on whether section 5 of the Voting Rights Act is upheld in Shelby Co. and what happens in the state’s appeal of the preclearance decision.

The issues would need to be adjudicated formally only if section 5 is declared unconstitutional in Shelby Co. or, alternatively, if section 5 survives, if the Supreme Court reverses the preclearance decision on appeal.

If, on the other hand, Shelby Co. results in section 5 surviving (and the preclearance decision remains unreversed), the issues would not need to be ruled upon but likely would factor informally into the permanent remedial map developed by the San Antonio court.