An Update on Texas Redistricting and the Process Ahead

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Last Friday was the deadline the San Antonio court gave parties in the Texas redistricting litigation to file advisories telling the court what they think it should do with the state's legislative and congressional maps.

The court previously told the parties that it would not “issue any opinion” until after the Supreme Court decides questions in Shelby Co. v. Holder surrounding the constitutionality of section 5 of the Voting Rights Act.

However, the court asked the parties for advice on alternative scenarios if section 5 is upheld and if it – or the coverage formula – are struck down, including time estimates.

So, what did they say? Find out below the jump.TIMING

The parties split into several camps on timing.

On the one hand, the State of Texas and the Texas Democratic Party urged that that any hearings on new or modified maps be completed by the end of August to minimize the impact on the 2014 election schedule.

Under a schedule proposed by the state, the parties would submit briefs in July, and the court would hold evidentiary hearings in late July on interim maps, followed by an additional round of briefing in late August.

The Texas Democratic Party suggested that the process could begin even earlier, telling the court that the evidence on new maps “is now known and its presentation can occur whatever the result of the pending Supreme Court cases concerning Section 5 of the Voting Rights Act.”

On the other hand, 5 of 7 of the plaintiff groups (the Quesada plaintiffs, the Travis Co. plaintiffs, Perez plaintiffs, NAACP, and African-American members of Congress) suggested that the court wait until early September to begin hearings on the state house and congressional maps, citing a need for pre-trial discovery.  They cautioned, though, that “[t]he later in September, the more difficult it will be for a decision to issue, and maps be put in place, in time to maintain the current statutory schedule for elections.”

The Republican Party of Texas, likewise, told the court that the process could be completed as late as October 31 and that the party was willing to make adjustments to election deadlines “to facilitate a decision by this Court … and prevent unnecessary waste of resources.”

The advisories filed by Mexican-American Legislative Caucus and the Texas Latino Redistricting Task Force did not discuss the timing issue. However, the Task Force's advisory hinted that the court might simply make the 2012 maps applicable to the 2014 elections by modifying the order adopting the maps (which, by its terms, made the court-drawn maps applicable only for elections 'in 2012').

Finally, on the state senate map, State Sen. Wendy Davis and LULAC told the court that only a short evidentiary hearing would be necessary on the state senate map if the court were inclined to adopt the interim map as the final remedial map for 2014 and beyond.


The parties – no big surprise – also split on whether additional changes are needed on the maps.

If section 5 survives and the Texas redistricting appeal is still pending, the State of Texas told the court that the 2012 interim maps could and should be used, without modification, for the 2014 elections since – in the state's view – those maps “account for every purported legal defect identified” in the preclearance decision.

The Latino Task Force (as noted above) also suggested in its advisory that the court in that scenario might simply modify its order to allow for the interim maps to be used in 2014. However, it hedged that statement by also saying the maps might “be further informed” by the D.C. court's ruling in the preclearance case.

The other plaintiff groups more strongly ruled out any further use of the 2012 interim maps in 2014.

MALC's advisory told the court that changes would be needed to the maps, regardless of the outcome of Shelby County and regardless of whether the court decided to develop permanent remedial maps or another set of interim maps for 2014.

Although MALC did not go in depth into what remedial or new interim maps might look like, it stressed that the 2012 interim plan was only a base line and needed “modifications to address the violations of Section 5 determined by the District Court for the District of Columbia.”

The joint advisory filed by the remaining plaintiff groups, likewise, said that “while the 2012 interim plans are the starting point, they cannot be the end point for devising interim plans for 2014.” Even if a Texas redistricting appeal is still pending, the advisory argued that the maps would need to be modified, among other things, to remedy the treatment of the old CD-25 (Lloyd Doggett's former seat in Central Texas).

And, if section 5 is struck down, MALC and the joint plaintiffs' advisories were emphatic that a number of other changes still needed to be made to the maps to address section 2 and constitutional concerns. The joint plaintiffs' advisory argued, for example:

“[W]hile the interim map did create a new effective African-American ability to elect district (CD 33), the interim map did not fully remedy the vote dilution in the DFW region … [T]he interim plan in that region unnecessarily isolated and fragmented significant minority population into Anglo-controlled districts and fails to fairly reflect minority voting strength in the region and comply with Section 2 of the Voting Rights Act. Creation of a new third minority opportunity district in the DFW area is the only viable remedial option.”

Likewise, they argue that the state house map “is the product of intentional racial discrimination, and  … as a whole should be invalidated under the Equal Protection Clause and the Fifteenth Amendment.” While noting that the “interim plan addressed many of the concerns” with the state house map, the advisory listed other problem areas, particularly Dallas and Tarrant counties, where the interim map simply adopted the legislature's plan in whole.

MALC's advisory similarly goes into great detail on what it says was the unconstitutional and systematic overpopulation of Hispanic districts and underpopulation of Anglo districts through use of devices like the 10% rule and county-line rule.

The Latino Task Force also told the court that, on the congressional map, the “Latino citizen voting age population in Texas is sufficiently large and geographically compact to comprise nine Latino opportunity districts.”

On the state senate side, things are a little simpler – if only because there are fewer parties and only one district (SD 10) in dispute.

Wendy Davis and LULAC told the court they believed the court should go ahead and adopt the interim maps as permanent remedial maps. While not agreeing that court-drawn map should become the final map, the State of Texas agreed that the 2012 map should continue as the interim map – to the extent an interim map is needed – and noted that a bill was pending in the Texas Legislature that would adopt the 2012 interim maps as permanent.

Indeed, for its part, the state's advisory seemed to be banking on legislative action make the three interim maps permanent, telling the court that that “this case would become moot” if that happens. While interim maps still might be needed if the “new” maps were not precleared in time (assuming section 5 survives), the state's advisory told the court repeatedly that the “newly enacted plans will serve as the starting point for any court-drawn plans” (a position the state seems to believe would be easier to defend).

The state also asked the court to put pressure on the Texas Legislature, telling the court that “[i]f the Legislature indicates that it will take up redistricting, this Court should set a deadline that gives the Legislature notice of the time frame within which it must enact new redistricting plans.”

The Republican Party of Texas and Texas Democratic Party did not take a substantive position on map changes.

The court said it would decide whether to hold a status conference after receiving and reviewing the parties' advisories.

You can find the advisories in full here

To see the maps that were filled in the Lege by State Rep. Yvonne Davis, go here


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