Burnt Orange Report

A Legal View of Redistricting

By Byron LaMasters

A lawyer friend of mine wrote to me about the Texas Democrats lawsuit regarding redistricting. Here's his take on the situation:

I read the Motion that the Dems filed in Tyler in Re-redistricting. You can find it on the State Party's website. It looks promising. It is not a new suit. The three judge panel that drew the current map issued an injunction to use that map. To change the map requires a modification of the injunction, which means that the State cannot "force" a new map without the three judge panel agreeing. The burden is high to modify an injunction. The Motion is entitled something like "Motion to prevent Defendants from modifying Injunction."

The Motion cites authority square on point that you cannot dismantle an minority opporunity district under the rationale of creating a different one in another part of the State. Thus you cannot swap the 25th for the 24th. The Motion also demostrates well why the proposed 23rd is unconstitutional.

Ironically, the case cites "reverse discrimination" precedent as to why the proposed 25th is unconstitutional. In a NC and LA case from the last reapportionment, those States created new black districts by taking isolated pockets of black population centers in far flung corners of the state and stringing them together with thin slivers, often the width of a state highway. The SCOTUS held them illegal, saying you cannot, in the name of creating a minority district, link otherwise unrelated, far-flung minority clusters together. That is exactly what the proposed 25th does (and the proposed 15th for that matter too). The Motion does a good job with the data to show that is what happened. Then, if the 25th goes, you cannot possibly use it to offset the 24th (even if you could do an offset).

I think one of the strongest arguments against redistricting (which was addressed in the Motion - but it was not as developed as I would have liked) is a variation of the "one man - one vote" principal. As you know "one man - one vote" says that districts must have (more or less) equal population. Mid-decade redistricting is based on already obsolete census data, so there is no way to verify if the districts, WHEN CREATED, fulfill the "one man - one vote" criteria. If this prevails, then no mid-decade redistricting period, end of story.

Devil's argument is that "one man - one vote" makes it better to redistrict mid-decade because as population changes, the districts become unequal in population. The response is that yes, BUT, that population shifts are going to happen and you cannot feasibly redistrict every 2 years (or year, or month, or week for that matter - popuklation changes every second) to keep track of population shifts. The point is that we only have reliable population data for the census year. The further we get away from the census year to redistrict, the more likely it is that districts violate "one man - one vote," and there is NO WAY to confirm if re-redistricting even comes close to "one man - one vote" because the data is outdated when the district is even drawn.