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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As Texas redistricting returns, here’s a quick tip sheet.

Key Terms

Ability-to-elect district - 

A district where a non-Anglo group has shown that it is able to get its preferred candidates elected (i.e., determine the result of the election). In an ability-to-elect district, a group need not necessarily constitute a majority of the population, but it must be in a position to exercise effective control over the outcome of elections on more than an incidental basis. Also known as a ‘section 5 district’ because these districts are protected from retrogression under section 5 of the Voting Rights Act.

In court hearings in Washington, the D.C. court rejected the State of Texas’ contention that the question of whether a district is an ability-to-elect district could be determined solely by a ‘bright line’ citizen voting age benchmark but held, instead, that courts must engage in a ‘functional analysis’ to determine whether a district performs as an ability-to-elect district.

Coalition district -

Generally used to refer to an ability-to-elect district where two or more non-Anglo minority groups (typically African-Americans and Hispanics) form a cohesive group.

Crossover district - 

A district where African-Americans and Hispanics are able to elect their candidate of choice with support from crossover Anglo voters. The D.C. court held that performing crossover districts are protected under section 5 of the Voting Rights Act. However, the State of Texas and the Texas Latino Redistricting Task Force have disputed that holding.

In the Texas maps, the D.C court in a 2-1 decision found the pre-redistricting CD-25 (represented by Lloyd Doggett) to be a functioning crossover district.

CVAP -

Citizen voting age population. CVAP is the population measure used in drawing section 2 districts and also an important measure when looking at ability-to-elect districts. Because the decennial Census does not ask questions about citizenship, the Census Bureau estimates CVAP using the annual American Community Survey.

Opportunity district -

A section 2 district. Sometimes also used to mean a section 5 district. However, the D.C. court in the Texas preclearance case defined opportunity districts as section 2 districts and referred to section 5 districts as ability-to-elect districts.

Preclearance -

The process that Texas and other jurisdictions with a history of discrimination must go through in order to get redistricting maps (and other electoral changes) approved before they can go into effect. A state may seek this approval either from the Justice Department or from three-judge panel in Washington.

In order to obtain preclearance, a jurisdiction must prove both that a map was enacted without discriminatory purpose and, regardless of intent, that it does not cause retrogression.

This constitutionality of this requirement currently is being challenged at the Supreme Court in the case of Shelby Co., Ala. v. Holder.  A decision is expected some time in June.

Remedial district

A district drawn by a court to remedy defects in a map.  Depending on the defects being remedied, the district might or might not be a section 2 district.

CD-33 in the court’s second interim map is an example of a remedial district drawn to correct intentional fracturing but which is not a section 2 district.

Retrogression -

A key term under section 5 of the Voting Rights Act. In the redistricting context, a review for retrogression looks at whether minority voting strength is decreased in ability-to-elect districts as a result of redistricting. As explained by the D.C. court, “[t]he question of retrogressive effect under Section 5 looks at gains that have already been realized by minority voters and protects them from future loss.”

Section 2 -

A principal provision of the Voting Rights Act, section 2 applies nationwide and prohibits, among other things, purposeful discrimination in redistricting. In certain cases, it also requires that section 2 districts be drawn. 

Section 2 district -  

Named for section 2 of the Voting Rights Act and also known as a Gingles district after the seminal Supreme Court case. Sometimes also called an opportunity district or a majority minority district.

A section 2 district must be drawn when there is racially polarized voting and a geographically compact district can be created in which the adversely affected minority group makes up more than 50% of the CVAP population. The Supreme Court has not yet ruled on whether two or more minority groups can be aggregated to reach the 50% CVAP threshold, though the Fifth Circuit has said that they can. 

Section 5 district -

An ability-to-elect district.

Shelby Co. - 

The case brought by Shelby County, Alabama to challenge the constitutionality of preclearance requirements under section 5 of the Voting Rights Act. The case was argued at the Supreme Court in January, and most court watchers expect a decision to be handed down toward the end of June. If the case results in section 5 being struck down, preclearance requirements would no longer automatically apply to Texas. However, the requirements of section 2 would continue to apply.

SSVR -

Spanish surname voter registration. Used along side other measures as a proxy for Hispanic voting strength in a district. However, while it has the advantage of looking at actual voters, it has the disadvantage of being both over- and under- inclusive (i.e., not all Hispanics have a Spanish surname and not all people with Spanish surnames are Hispanic).

Total population -

The measure use to apportion congressional districts among states and, in Texas, to apportion state house districts among counties. Also used to set the target population for both legislative and congressional districts and to measure population variances between districts. However, total population is generally not used for purposes of the Voting Rights Act.

VAP -

Voting age population. Generally not used in Texas because of the state’s high number of voting age non-citzens. See CVAP. 

Key Disputes

A Hispanic congressional seat in North Texas

Travis County on the congressional map (part 1)

Travis County on the congressional map (part 2)

CD-23 

The state house map

Demographic Stats and Election Results for Current Districts

CVAP, SSVR & 2012 Election Results (state house, state senate & congressional maps)

Congressional election results using interim map (2008 & 2010)

State house election results using interim map (2008 & 2010)

State senate election results using interim map (2008 & 2010) 

Background on Texas Population Growth

At a statewide level, Hispanics accounted for around 66% of the state’s population gain between 2000-2010, with African-Americans making up another 23% of the growth. Without non-Anglo growth, Texas would not have gained any new congressional seats in the 2011 reapportionment.

Most demographers expect this trend to continue for the foreseeable future:

Statewide projected CVAP increase between 2012 & 2016

Demographic makeup of Texas’ population by age range

Prior Bills and Hearings

SB 1524 was a bill by State Sen. Kel Seliger (R-Amarillo) in the regular session which would have made all three court-drawn interim maps permanent. The bill received a short hearing in Senate state affairs in April but did not get a committee vote.

HB 2840 was the companion bill to SB 1524, but the House redistricting committee did not meet during the regular session.
Current Bills

SB 1 (Seliger) - redistricting bill for both Texas Legislature and congressional seats. Companion HB 1 (Darby)

SB 2 (Seliger) - redistricting bill for Texas Senate. Companion HB 2 (Darby)

SB 3 (Seliger) - redistricting bill for Texas House. Companion HB 3 (Darby)

SB 4 (Seliger) - redistricting bill for congressional seats. Companion HB 4 (Darby)

HB 11 (Oliveira) - alternate redistricting bill for congressional seats

HB 13 (Davis, Y) - alternate redistricting bill for congressional seats

HB 14 (Davis, Y) - alternate redistricting bill for Texas House

HB 17 (Coleman) - alternate redistricting bill for congressional seats

HB 26 (Anchía) - alternate redistricting bill for congressional seats
The Congressional Maps to Date

Pre-redistricting congressional map (Plan C100)

Legislatively enacted congressional map (Plan C185)

First interim congressional map (Plan C220)

Second interim congressional map (Plan C235)

Yvonne Davis alternate congressional map (Plan C236)

René Oliveira alternate congressional map (Plan C188)

Rafael Anchía alternate congressional map (Plan C238)

The State House Maps to Date

Pre-redistricting state house map (Plan H100)

Legislatively enacted state house map (Plan H283)

First interim state house map (Plan H302)

Second interim state house map (Plan H309)

Yvonne Davis alternate state house map (Plan H312)

Garnett Coleman alternate state house map (Plan H302)

The State Senate Maps to Date

Pre-redistricting state senate map (Plan S100)

Legislatively enacted state senate map (Plan S148)

First interim state senate map (Plan S164)

Second interim state senate map (Plan S172)

Key Litigation Players

Summary here.

Key Court Documents

D.C. court’s denial of Texas’ request for summary judgment in favor of the maps (November 2011)

D.C. court order defining preclearance standards (December 2011)

Supreme Court opinion on initial interim maps (January 2012)

San Antonio court’s explanatory opinions regarding the second set of interim maps (February 2012)

D.C court’s opinion denying preclearance (August 2012)

Parties’ advisories on remaining map disputes (March 2013)

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