|Setting the Stage for Future Lawsuits
The key question in redistricting is whether the 2/3rds rule will apply in the Senate; if it does, then the 12 Democrats can block intentionally discriminatory maps from coming to the floor if they stick together.
Initially, Dewhurst told reporters that the 2/3rds rule would not be in effect for a special session. During tonight's floor discussion, Senator Kirk Watson attempted to determine if that was indeed true.
Watson asked specifically about "blocker bills," which are meaningless, silly bills passed out of committee quickly to occupy the top spot on the calendar and thus force Senators to suspend the rules to bring up any other bills out of order, which requires 2/3rds of the Senators to vote for the suspension.
Dewhurst claimed that there would not be blocker bills and that there hadn't for 10 years; Watson countered with actual historical examples of blocker bills in previous special sessions.
If there is no blocker bill, then there is no need for the 2/3rds rule to be used to bring a bill (such as redistricting) up for a floor vote.
Having a blocker bill is purely at the discretion of the Lt. Gov. Even if the entire Senate wanted to put one on the calendar, Dewhurst could remove it. And even if he did let a "blocker bill" come up, he could remove it later anyways.
WIthout a blocker bill, legislation is considered in the order it comes out of committee. Dewhurst indicated tonight that there will be no blocker bill. If that is the case, there will be no 2/3rds rule and a simple majority could pass a redistricting plan.
Much of this early questioning is about potential future redistricting litigation.
(That is, if we ever finish up the litigation we've got now.)
Watson's request to clarify the 2/3rds rule and Ellis's motion to get it in the record is in response to previous cases in which the Federal courts slammed Texas for departing from traditional procedural norms to force through a discriminatory map.
Should Dewhurst ignore the 2/3rds rule during the special session, that hands Democrats -- who would be on the receiving end of any partisan redistricting malfeasance -- a huge weapon to use in a future lawsuit against whatever discriminatory maps might pass without it.
The Maps Perry Wants Were Based on Discriminatory Intent
Sondra Haltom at Empower The Vote breaks it down:
The San Antonio court drew the interim maps as a temporary measure (that's why they call them "interim") while waiting on a ruling from a three-judge federal panel in D.C. as to the compliance of the legislatively drawn maps with the Voting Rights Act. The D.C. panel later determined that the maps adopted by the Legislature were retrogressive (meaning they made minority voters worse off) and intentionally discriminatory against minority voters. You read that last part right. Not just accidentally discriminatory, discriminatory on purpose. In fact, the opinion states that the parties involved "have provided more evidence of discriminatory intent than we have space, or need, to address here."
Intentional discrimination was something the San Antonio court never heard evidence on or addressed because the D.C. court's findings came after the San Antonio district court had already ordered the interim plans into effect for the 2012 elections. Additionally, the maps the San Antonio court drew still don't reflect appropriate representation for minority voters, who made up 89% of Texas' population growth in the last decade and are the reason Texas got 4 new Congressional districts in the first place.
So basically, the interim maps contain some of the same problems as the original maps the Legislature drew. For Abbott to think that the legislature can just adopt less-flawed maps to replace really-flawed maps and no one will challenge that is simply delusional and the members of the legislature shouldn't buy into it.
If the state really wants fair maps, they need to basically start over with the census and draw maps that reflect the state's population growth, which was predominantly due to an increase in Latino and African American Texans. A fair map would have many more Democratic districts in it, in both the Congressional and Legislative map.
That's not what Perry called them back to do.
Perry wants the Lege to pass the interim maps, which were based on the original maps, just less bad.
What About Section 5 of the Voting Rights Act?
One other wrinkle in all of this comes out of Shelby County, Alabama where a SCOTUS case could threaten Section 5, which provides protections for minority voters in geographical entities with a history of racial discrimination. Section 5 requires preclearance in these covered jurisdictions. Texas is one such jurisdiction -- and if anyone questions whether Section 5 of the VRA need still exist, just look at the maps drawn by the Republican supermajority Legislature in 2011 that were found to have discriminatory intent!
In any case, if the decision on Shelby County comes down during all of this, expect it to get messier. And if Section 5 is struck down after the Lege finishes the special, they might just be back to re-re-re-redistrict all over again.
What About Abortions or Guns?
Right now, only redistricting is in the call. Perry can add other issues as he pleases, though apparently he wants these discriminatory maps so bad that he won't add other issues until redistricting is done.
The select redistricting committee will have a hearing on Thursday at 9am in the extension auditorium, so stay tuned. And in the meantime, get up to speed on special sessions via the Legislative Reference Library. Also, Michael Li is already out with a primer on redistricting and where we are now.
Happy Memorial Day!
Ed. note: a previous version of this post suggested that the 2/3rds rule would remain untouched. However, Dewhurst indicated that there would be no Blocker Bill; if that is true, then the 2/3rds rule would not be in effect.