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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What’s at issue?

The plaintiffs argue that the current Texas senate map (Plan S172) must be redrawn using “eligible voters” rather than “total population” - the measure long used by the Texas Legislature - because the latter now results in districts with significantly differing numbers of voters.

By not using eligible voters, the plaintiffs say the Texas Legislature violated the “one-person, one vote” principle of the Constitution’s Fourteenth Amendment by allowing some voters’ votes to count for more than those of others.

Why are there disparities?

In Texas, the major driver of disparities in the number of eligible voters is the high number of non-citizens in parts of the state - mainly its urban and suburban cores. For example, in places like Dallas and Houston, commonly accepted estimates are that around half of adult Hispanics are non-citizens.

Of course, disparities also can exist for any number of other reasons, including higher numbers of children under 18 in fast growing parts of the state or a larger number of people who are unable to vote because of felony convictions.

However, differing citizenship rates are, by far, the largest driver of disparities in the number of eligible voters.

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What does “eligible voter” mean?

In their complaint, the plaintiffs do not set out the specific way of calculating eligible voters that they believe should be used to draw districts.

However, they suggest that disparities exist using any of the common measurements of eligibility, including citizen voting age population (CVAP), registered voters, and non-suspense voters.

How would drawing districts using “eligible voters” change the current map?

At present, Texas senate districts have a target population of 811,147 people.

If courts were to require maps to be drawn using some measure of eligible voters, the target size of districts also would change.

For example, although Texas has over 25 million people, its citizen voting age population in the most recent Census Bureau report was estimated to be just 15,583,540. Using CVAP to draw districts would mean that each district would have a CVAP target of 502,695.

That target population would require significant reworking of districts that presently have large Hispanic populations.

In the Houston area, for example, SD-13, represented by State Sen. Rodney Ellis, has a CVAP population of only 419,035, and SD-6, represented by State Sen. Sylvia Garcia, fares even worse with just 377,505 citizens of voting age. Likewise, in the Dallas area, SD-23, represented by State Sen. Royce West, has just 456,955.

Even with permitted deviations from the target population, these districts would need to add population, mostly likely by drawing from neighboring Anglo-dominated districts. Though those people might or might not be Anglo, the need to add large numbers of people mean the demographics and electoral performance of the districts could change materially. In fact, the need to add people might very well jeopardize the protected status that those districts currently enjoy under section 2 of the Voting Rights Act.

In other words, this could be a very big deal not only for Hispanics but also potentially African-Americans.

There could be practical impacts as well for legislators since urban districts would likely end up with far greater numbers of total people - who, although they might not be able to vote, still have need for constituent services - and be much larger physically as well. 

Wasn’t there a similar case recently about the same issue?

Yes. In fact, it involved many of the same players.

In Lepak v. City of Irving, the lawyers in the Texas senate case - also backed  by the Project for Fair Representation - represented Irving residents in arguing that the city’s new single-member council district map was unconstitutional because it had been drawn using total population rather than CVAP. 

Both the district court and the Fifth Circuit ruled against the Irving plaintiffs, citing the Fifth Circuit’s ruling in Chen v. City of Houston, which held that the question of whether to use total population or CVAP was a political question and thus not reviewable by courts.

The Irving plaintiffs sought to have the decision reviewed by the Supreme Court, but the high court declined last April to take the case.

However, the Texas senate case potentially represents another opportunity to have the Supreme Court take up the issue since any appeal would go directly to the Supreme Court as a matter of right.

More background on Lepak here.

Will the suit be heard by the same court as the other Texas redistricting claims?

Right now, the new case is pending before Judge Lee Yeakel of the Austin division of the Western District of Texas.

However, it is possible that one or more (or all) of the parties in the existing redistricting cases could ask that the case be transferred to the San Antonio division so that it can be consolidated with the other cases.

Doing so certainly would make sense since the new case - like the existing cases - must be heard by a three-judge panel because it involves a challenge to a statewide legislative body.

On the other hand, while the San Antonio panel has experience with the current state senate map and knowledge of the disputes that gave rise to the map’s present form, there are no ongoing disputes over that map, other than disputes over the amount of attorneys fees awarded to State Sen. Wendy Davis and LULAC.

Does the suit challenge the state house or congressional maps?

No. The suit - for now - only challenges the state senate map.

Could the new case affect the 2014 election?

In theory, yes.

The plaintiffs’ court papers ask for the court to block the state from using Plan S172 and to “establish constitutionally valid state senate districts prior to the next scheduled state senatorial election” (i.e., the November 2014 election).

However, that would likely be a highly unpopular step among the winners of this year’s Texas primary - most of whom do not face serious competition this November - and it likely would be viewed with disfavor by the court and the bulk of the Texas political class as well.

In any event, it is by no means clear, even if the court were inclined to grant the relief sought, that the complicated process of drawing a new map could be completed in time before election deadlines kicked in.