Legislature Looks Like It's Coming Back Tuesday For Special on Redistricting

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To paraphrase Don Corleone: “Just when you think you're out, they pull you back in . . .”

imageWayne Slater from the Dallas Morning News has tweeted that two well-placed sources say that a special session on Texas redistricting will start Tuesday, immediately after sine die.

In the mean time, the Congressional Black Caucus has sent a letter to Gov. Perry expressing concerns about a special session over redistricting and telling Perry that any acceptable map needed to contain at least four African-American ability-to-elect districts.

Currently there are only three such districts (CD-9 and CD-18 in Harris County and CD-30 in Dallas County) where the African-American citizen voting age population is above or just barely shy of 50%.

In addition, CD-33 on the court's interim map has a Hispanic citizen voting age plurality (40%) but was won in 2012 by Congressman Marc Veasey in the Democratic primary largely on the strength of African-American turnout.

The letter also expressed support for Hispanic efforts “to be fully empowered within the Texas congressional plan.”

Learn more below the jump.At least some of the redistricting plaintiffs have suggested that in the Metroplex adequate Hispanic representation would entail addition of a clear Hispanic ability-to-elect district in addition to maintaining a version of the district Veasey currently represents.

Perhaps something like this from Plan C204 proposed by the Quesada plaintiffs in the last go round (CD-34 being a Hispanic opportunity district and CD-35 being an African-American opportunity district in this map):

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Or this from Plan C236 (CD-3 being a Dallas-based Hispanic opportunity district and CD-33 being a Tarrant based African-American opportunity district):

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Here's a copy of the full letter:

Congressional Black Caucus Gov. Perry Letter by Nicole Narea

Some more Q&A:

Why have a special session if the court in San Antonio is going to be looking at the maps anyway?

The reasons appear to be as much practical and political as legal.

The maps passed by the Texas Legislature in 2011 ended up getting a very cold reception from the three-judge D.C. panel, which not only declined to preclear any of them but also found substantial evidence of intentional discrimination against non-Anglo voters.

In fact, on the congressional map, the court went so far as to say “[t]he parties have provided more evidence of discriminatory intent than we have space, or need, to address.”

Simply put, that's not a very good place for a lawyer to be when going back into court.

And the hope among the Republican leadership seems to be that by adopting the court-drawn interim maps, they might wipe the slate at least partially clean – optically if not legally.

On top of that, there are the inevitable political considerations.

Doing everything possible to avoid another messy and unpopular delay of the Texas primary would seem to be in the interest of Greg Abbott, who has all but said he is going to run for governor in 2014.

Although it's been more than a year since the last round of map drawing, memories of the anxiety of the process induced – and the pain of a brutally hot late July runoff – remain fresh. As does the fact that the delayed primary almost certainly gave Ted Cruz a chance to catch up to and overtake Lt. Governor David Dewhurst in the race for the Republican nomination for U.S. Senate.

Why wouldn't the Governor wait until after the Supreme Court rules on the constitutionality of section 5?

Given that the intent seems to be to adopt the interim maps in an abbreviated special session, the timing may come down to practicalities as much as anything. It just may be easier to do now than to reconvene the Legislature later this summer when people have scattered to the winds.

The uncertainty about Shelby Co. also probably works in favor of the Legislature's Republican leadership by avoiding or limiting intra-caucus fights that otherwise might occur, if section 5 were struck down, about whether to go back to the original legislatively enacted maps.

Of course, there also probably is some wariness about how long the process with the court might take. While the parties have expressed optimism that the court case could be completed in time to avoid too much interference with the election schedule, that's what they thought last time, too.

If the Governor were to wait until after a decision in Shelby Co. to call a special session, it would put a special session close to the optimal late July trial date the parties have talked about.

How would adopting the interim maps change the parties' legal positions?

It is not clear that it would.

Certainly if the Legislature had thrown out the maps it drew in 2011 and started anew – particularly if it had held extensive hearings, engaged minority groups, etc., as part of that process (things the DC court criticized it for not doing the last time) – then it is fairly clear that the new legislatively enacted maps would serve as the starting point for judicial review.

But, by all accounts, the Republican leadership's plan for a special session is simply take the court's interim maps and adopt them as permanent maps.

Those maps, however, were drawn under a Supreme Court directive that told the San Antonio panel to use caution in changing the maps absent a definitive preclearance decision. Moreover the court's orders adopting the maps, by their express terms, said they based on “preliminary determinations”and were “not a final ruling on the merits of any of the claims asserted.”

And since then, the D.C. court has handed down a decision that found substantial evidence of intentional discrimination and a number of other problems with the maps not addressed by the interim maps – e.g., the elimination of CD-25 in Central Texas.

The evidence of intentional discrimination cited by the D.C. court especially would seem to undermine claims that the interim maps are new maps.

In North Texas, for example, the interim map made no changes to the Legislature's state house map – despite the fracturing of some of the same minority communities that gave rise to the court's creation of CD-33 in the interim congressional map. The awkwardly drawn HD-93 in Tarrant County and HD-105 in Dallas County are just two examples:

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Any sense of where the San Antonio court is?

It's hard to say.

It's been over a year since the court last had a chance to consider that maps in detail – and that was in a mad dash scrum to get interim maps in place to allow the 2012 election to proceed.

However, while we don't have a clear sense of the court's temperature, the court's order clearly envisions a careful look at the maps regardless of whether section 5 survives.

And the fact that the court is starting the process now also indicates that the court is mindful of timing considerations and likely as anxious as everyone else to avoid another primary scheduling kerfuffle.

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