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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Trial in the first of two big lawsuits over Texas redistricting starts bright and early at 8:00 a.m. this Tuesday morning in San Antonio’s federal courthouse.  Here’s a quick guide to who’s who and what’s what.

The parties challenging the maps

Mexican-American Legislative Caucus 

The legislative association of the current Hispanic members of the Texas House of Representatives.  MALC’s membership includes both Democratic and Republican members, and one of MALC’s claims challenges elimination of a Hispanic Republican’s state house seat.

Texas Latino Redistricting Task Force

A grouping of Hispanic organizations including MALDEF, Texas LULAC, the Southwest Voter Registration Education Project, and the Mexican-American Bar Association of Texas.  Former State Representative Domingo Garcia is chair of the Task Force.

LULAC

National LULAC, as opposed to Texas LULAC.

The Veasey plaintiffs (aka the Quesada plaintiffs).

A grouping of mostly Dallas-Fort Worth and Houston area plaintiffs that includes State Representative Marc Veasey (D- Fort Worth).

The Travis County plaintiffs (aka the Rodriguez plaintiffs). 

A grouping of Travis County based plaintiffs, including Travis County, the City of Austin, and State Representative Eddie Rodriguez.  This group is widely understood to be supported by Congressman Lloyd Doggett.

NAACP

The Texas branches of the NAACP.

The Dutton plaintiffs

A group of plaintiffs led by State Representative Harold Dutton.  Dutton’s case was the first filed in San Antonio.

Congresswomen Sheila Jackson-Lee and Eddie Bernice Johnson and Congressmen Al Green and Henry Cuellar

The Judges and lawyers

In voting rights claims involving statewide plans, cases are heard by a three-judge panel, at least one of whom has to be a court of appeals judge.

In San Antonio, the three judges are:

District Judge Orlando Garcia. 

Appointed to bench by President Bill Clinton in 1993, Judge Garcia is also interesting because he is a former member of the Texas Legislature (1983-1991).  Judge Garcia is presiding judge of the panel.

District Judge Xavier Rodriguez.  

Like Judge Garcia, Judge Rodriguez also has some experience with electoral politics.  A former partner at Fulbright & Jaworski, Judge Rodriguez was appointed to the Texas Supreme Court by Governor Perry in 2001 to fill an unexpired term.  He ran for election a year later but lost in the Republican primary to Steven Smith, despite broad support in the bar and a nearly 11-1 fundraising advantage.  A year later, President George W. Bush appointed him to the federal bench.

Circuit Judge Jerry Smith. 

Judge Smith is the most senior of the members of the panel, having been appointed to the bench by President Reagan in 1987.  Judge Smith is perhaps most famous as the author of the Hopwood v. Texas, which struck down the University of Texas’ affirmative action program.

And let’s not forget the lawyers:

http://txredistricting.org/post/7495418016/backgrounder-meet-the-lawyers

The claims being tried in San Antonio

Plaintiffs in San Antonio will be trying to show two main things.

The first is that the state could have created more minority-majority districts, both state house and congressional.  These are often called ‘section 2’ claims after the section of the Voting Rights Act that gives rise to them.

The key to succeeding on these claims is showing that there is racially polarized voting such that minorities are prevented from electing their ‘candidate of choice’ and then that it is possible to draw a geographically compact district with a majority minority population.

MALC and the Latino Task Force both argue that five additional Latino state house seats could have been created. On the congressional side, plaintiff groups argue that additional minority congressional seats could have been created in North Texas and in the Houston area and that the state improperly converted a couple of existing Latino opportunity districts (CD-23 in West Texas and CD-27 in South Texas) into seats that would be highly unlikely to elect the Latino candidate of choice.

In fact, according to plaintiff groups, the current congressional map reduces the number of effective minority congressional seats from 11 to 10 and gives Anglos effective control of 26 of the state’s 36 congressional districts. This despite the fact that minorities accounted for 89% of the state’s population growth over the last decade (Hispanics alone 66%). 

A subset of this challenge is an attack by MALC on the state’s use of a rule permitting a 9.9% deviation in the size state house districts, which MALC contends lets the state overpopulate Latino districts and thus avoid having to create additional Latino majority state house districts.

MALC also is bringing a second, related challenge to the state’s strict application of the so-called ‘whole county rule.’ This rule expresses a preference that state house seats in large counties not cross county lines. MALC has argued that less rigid application of this rule would permit creation of additional Latino majority state house seats.

The second main argument plaintiffs advance is that the state’s redistricting process was intentionally, or in effect, discriminatory against minority groups in violation of the equal protection clause of the 14th amendment.

Trial on these claims likely will focus not only on the ‘packing’ and ‘cracking’ of minority populations but on allegations that the state carefully used election data to create districts that on paper look like they maintain or increase minority voting strength but, in reality, decrease it (e.g., by substituting out higher voting Hispanics for lower voting ones).

The state is expected to counter that it attempted to disadvantage Democrats, not minorities except to the extent that they, well, just happened to be minorities. That argument has had some traction with courts in the past but it might have been easier in past rounds when Republican were targeting Anglo Democrats.  Minority groups also say it probably also doesn’t help that the last legislative session focused heavily on voter ID and sanctuary cities.

The claims that have already been booted or withdrawn

Three claims so far have gotten the boot.

On Friday, the panel rejected claims by the Davis/Veasey plaintiffs, the Texas Democratic Party and a pro se plaintiff, John Morris of Houston, asserting that the redistricting process resulted in an unconstitutional partisan gerrymander.  An appeal is expected.

The court also dismissed claims by the Dutton plaintiffs, which sought to have the state count prisoners as residing in the county where they lived before being imprisoned rather than in the county where their prison is located. Had this claim succeeded, it likely would have given Harris County an extra (Democratic) state house seat.

Finally, the panel also dismissed claims by plaintiff groups that the state’s map violated the 15th amendment by depriving minorities of an effective right to vote.  The panel did not get to the factual merits of the claim but said the claim was not actionable under the 15th amendment.  However, plaintiff groups’ parallel 14th amendment claims still remain on the table.

In addition to the booted claims, two other groups have dropped their claims ahead of trial.

Earlier this summer, a group of North Texas plaintiffs voluntarily withdrew a challenge that sought a ruling that districts should be apportioned and drawn using only citizens rather than total population- a claim that had it been successful would have favored Republican strongholds in rural and suburban areas of the state.  This suit was filed by Michael Hull, a frequent attorney for Texans for Lawsuit Reform, and was widely thought to be part of the jockeying for a venue advantage by Republican leaning groups.

The Texas Black Legislative Caucus also has withdrawn its claims, citing the similarity of its claims to those being asserted by the NAACP and various African-American members of Congress.  (TBLC has sought to intervene in the pre-clearance suit in Washington.)

 Claims being tried elsewhere

 The drama in San Antonio is only one half of the redistricting battle.  The other - and arguably more important part of the Texas-sized battle- takes place in Washington, D.C. where a different panel of three judges will decide whether any Texas’ statewide redistricting maps result in ‘retrogression’ for minority groups under section 5 of the Voting Rights Act.  This process is known as ‘pre-clearance’ and is something Texas, like a number of other mostly southern states, has to do because of a history of discriminating against minority ethnic or linguistic groups.

More on the retrogression claims in a separate post, but, from 30,000 feet, a retrogression claim looks at the voting strength of minority voters and asks whether a new map at least preserves that strength at its current level.  Retrogression can occur both within a region or statewide.  Retrogression claims are important because they look not only at minority strength in majority minority districts but also at minorities’ effective power in Anglo majority districts.

One other note:

The fact that Texas is suing in DC district court is unusual.  The Voting Rights Act allows states to seek pre-clearance of maps through an administrative process with the Justice Department.  For the first time ever, Texas has chosen not to go the DOJ route but instead to seek pre-clearance from a court. 
 
The trial schedule

Right now, the case is scheduled to be tried from September 6-16, with court convening each day at 8 a.m.  (Yes, a case that is expected to focus heavily on Hispanic Texas will end on Deiz y Seis.)

On Mondays and Wednesdays, the court will work late- until at least 6 p.m. and possibly later.  On Tuesdays, the court will work until 5:00 p.m. or so.  And on Fridays, the court will recess at 1:00 p.m.  The court also said that it might hold court on Saturdays if needed.

But don’t expect a speedy decision.  Once trial is complete, the panel isn’t expected to hand down its opinion until the DC panel has a chance to rule whether the maps violate section 5 of the Voting Rights Act. 

Since that ruling may not come until around Thanksgiving (or later- gulp …), there could be a lot of sit and wait for candidates, parties, and any number of anxious political consultants.

What happens if the maps get struck down?

The ‘remedy phase’ of the trial will depend in large part what happens in Washington.  If the panel there holds that a map, in whole or in part, violates section 5 of the Voting Rights Act then the action would shift to San Antonio, where the San Antonio panel would draw the substitute map the state would use for next year’s elections. 

Since a failure to obtain pre-clearance would mean that there is no legally enforceable map, the panel would have a much freer hand in drawing a replacement map.

If, on the other hand, a map gets pre-clearance, then the San Antonio court then would  rule on the remaining claims (i.e. the claims that are getting tried before it over the course of the next nine days).  If it finds violations, it would redraw the map to remedy the violation but, in doing so, case law requires that it give ‘deference’ to the state’s pre-cleared map and make only those changes necessary to fix the violation.

In either instance, Governor Perry could call a special session of the Legislature to draw replacement maps, but the state has conceded that is highly unlikely given the impending start of the 2012 cycle.  Not only would the Legislature have to reconvene, but any map  it adopted would itself have to be submitted for pre-clearance to either the Justice Department or to the D.C. panel.

What about election deadlines?

One of the changes the Legislature made this year to the Texas Election Code was to move the end of the candidate filing period forward to December 12 in order to comply with new federal  election law. 

Alas, because the trial schedule means that decisions are unlikely to be handed down before the start of the filing period, it is almost certain that the court will order election deadlines to be moved.  It’s even possible that the date of the March 2 primary could be moved. 

What about appeals?

Any appeals from a ruling by the three-judge panel go directly to the U.S. Supreme Court, although it’s not expected the Supreme Court would take any action before the 2012 elections.  In fact, the final ruling on Texas’ 1991 maps didn’t come until 1996.

And, of course, if the state is ultimately unhappy with court-ordered maps it could attempt to draw new maps in a future session of the Texas Legislature. 

So, in short, it may be years before the dust from this year’s redistricting cycle finally settles.