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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[Fifth in a series. Prior pieces here, here, here, and here.]

It seems like every redistricting cycle, CD-23 gets to play a starring role.

The district was at the center of contentious litigation over the mid-decade map drawn by the Texas Legislature in 2003, in which the Legislature removed large parts of Laredo from the district and substituted in more heavily Anglo (and Republican) suburbs north of San Antonio.

After the Supreme Court ruled that district unconstitutional in 2006, a three-judge panel in the Eastern District of Texas created a new version of the district that replaced the problematic San Antonio suburbs with heavily Hispanic neighborhoods in South San Antonio.

And in the 2011 round of litigation, the district again found itself at the heart of disputes over the congressional map - with Hispanic groups contending that changes to the district once again diluted the voting power of Hispanics.

Ultimately, the San Antonio court’s second interim map modified the version of CD-23 that the Texas Legislature drew. However, now as the court takes up redistricting again, it will have to decide whether those changes were enough.

CD-23 before redistricting in 2011

Under the pre-2011 court-drawn map, CD-23 stretched from western El Paso County to San Antonio, making it larger than many states (59 million square miles overall).

But for all its sweep, the district was heavily anchored in Bexar County, where more than 63% of the district’s population lived.

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OHRVS 

When it came time to redraw the Texas maps in 2011, Texas Republicans embarked behind the scenes on a maneuver that would come to draw sharp criticism from the D.C. Court in the preclearance case.

That maneuver - outlined in emails as early as November 2010 - was in short to swap out higher voting Hispanics (primarily in Bexar and Maverick counties) for lower voting ones elsewhere.

The effect would be to create a district that looked like Hispanic opportunity district on paper but, in actuality, would elect a Republican who was not the Hispanic candidate of choice.

The lawyer for the state’s Republican congressional delegation even coined a term for it: “OHRVS” or optimal Hispanic Republican voting strength.

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 A trial exhibit from the litigation over the maps illustrates the swaps made in the state’s map (Plan C185):

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The D.C court took great issue with the swaps, explaining:

Texas claims that the enacted district has remained functionally identical … but these claims are undermined by the mapdrawers’ own admissions that they tried to make the district more Republican and consequently, less dependable for minority-preferred candidates without changing the district’s Hispanic population levels. The mapdrawers consciously replaced many of the district’s active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of CD 23’s Anglo citizens. In other words, they sought to reduce Hispanic voters’ ability to elect without making it look like anything in CD 23 had changed.

The San Antonio court’s fix and the 2012 election

In the second set of interim maps, the San Antonio court incorporated a proposed compromise that reunited Maverick County - where the city of Eagle Pass had been split in two under the state’s map - and restored some, but not all, of the removed South San Antonio neighborhoods to the district. (Most of South San Antonio, instead, became part of the new CD-35 stretching from Austin to San Antonio.)

At hearings on the interim map, the Mexican-American Legislative Caucus argued that the changes to the state’s map had not gone far enough in making CD-23 a genuine opportunity district.

In the 2012 election, then State Rep. Pete Gallego bested incumbent Republican Congressman Quico Canseco 50.3% to 45.5% in what was one of the country’s most expensive congressional races.  Mitt Romney, however, carried the district with 50.7% of the vote.

Now, as litigation over the maps starts up again, the question for the San Antonio court will be whether the new data available suggests a need for additional changes.