Legal Basis for New Congressional PlanC245

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I. Backdrop for offering new congressional plan

The extreme limitations that the Governor placed on his call for this special session demonstrate the intention—shared by him and others piloting this redistricting process—to do nothing more than ratify the interim congressional plan that the federal court in San Antonio adopted for use in the 2012 elections. Indeed, the call technically prevents the legislature from considering anything but the maps that were used in the 2012 elections. Fortunately, the Senate Parliamentarian has ruled that this attempted limitation will not stand. Permanently enshrining this interim plan into state law gives it a much loftier status than the San Antonio court itself gave it.

The San Antonio court’s interim plan was adopted in February 2012. By then, primary elections in the state had been repeatedly postponed, and the preclearance case in Washington, D.C. district court was well underway.

The San Antonio court recognized the dilemma that the state’s actions created. The court emphasized over and over again that its legal analysis at that point was incomplete, and the interim plan rested on only “preliminary conclusions” that might be revised upon “full analysis.”[1] It explained that its analysis was “curtailed” and its decision “expedited.”[2] The court said that the interim map was “not a final ruling” because its conclusions “may be revised upon full analysis.”[3]

Every detail of the plan was qualified by the explanation that it was valid only “at this time.”[4] A key reason for this qualification was that, in February 2012, the San Antonio court did not have the benefit of the Section 5 Voting Rights Act decision by the D.C. federal court. That decision would not come until six months later, in late August 2012.

It is clear that had time and circumstance allowed the San Antonio court to take into account the D.C. court’s ruling, the interim plan would have looked very different in several important respects. As a result—and despite claims from the Governor, Lt. Governor and Attorney General—the 2012 interim plan does not “address every legal flaw” identified by the D.C. court.[5] 

The D.C. court—a three-member court with two members appointed by Republican Presidents—found that the Texas legislature enacted the 2011 congressional plan with racially “discriminatory intent.”[6] The court went into some detail on this but ended with an astounding conclusion: that there was “more evidence of discriminatory intent than we have space, or need, to address here.”[7]   

Learn more below the jump. 

II. Central and South Texas focus

The plan I am offering attempts to fix the constitutional and Voting Rights Act flaws of the interim plan that exist in Central and South Texas. It contains no changes to the interim plan in the Harris County or Dallas-Fort Worth areas; other senators will surely present proposals to remedy deficiencies in those areas, and this map should not be taken as an indication that those remedies are not necessary and appropriate.  A state map is being provided only to show context of the amendment within the interim plan.  

 

III.  “Least change” map

PlanC245 is a “least change” map. This does not reflect all the ways in which the 2012 interim map could be improved and made fairer to the voters of Texas. Nor does it reflect my political preferences.

Rather, this map simply honors the lines of the 2012 interim map wherever possible in Central and South Texas while curing that map’s constitutional and statutory flaws. It minimizes the disruption of existing lines and ensures that any ripple effects are legal and constitutional.  

 

IV.  Central Texas and Travis County: restoration of destroyed crossover district

Specifically, this map fixes a core constitutional defect in the interim plan. It restores a crossover district centered in Travis County that the interim plan, by simply adopting the 2011 legislatively enacted map, destroyed. It does this while maintaining the same number of Latino opportunity districts in Central and South Texas as were in the interim map.

Justice Kennedy, in his 2009 Supreme Court opinion in Bartlett v. Strickland, 129 S.Ct. 1231 (2009), defines a crossover district as a district where “the minority population…is large enough to elect the candidate of its choice with help from voters who are members of the majority and who cross over to support the minority’s preferred candidate.”[8]

In Bartlett v. Strickland, Justice Kennedy affirms: “[I]f there were a showing that a State intentionally drew district lines in order to destroy otherwise effective crossover districts, that would raise serious questions under both the Fourteenth and Fifteenth Amendments.”[9]

Six months after the San Antonio court’s decision to maintain—albeit only for the moment—the interim map’s configuration for South and Central Texas districts, the D.C. court held that the 2011 enacted map (and, therefore, the interim map) had destroyed an existing crossover district. That district was the former CD25, anchored in Travis County.

The D.C. court imposed an exacting evidentiary burden on those claiming the existence of a crossover district.  The court specifically determined that the burden had been met to show there was a “tri-ethnic crossover coalition at work in [former]CD25” that reflected “equal power-sharing among the members of the coalition.”[10] On this point, the D.C. court bluntly rebuffed those arguing that the facts did not support its finding. Those arguments, said the court, were “factually wrong” and based on “faux data.” [11]  Furthermore, they were inconsistent with the state’s own concession in post-trial filings in the San Antonio court in 2011, where it concedes “CD25 in the benchmark plan is a crossover district.” [12]

The legislature dismantled former CD25 in 2011, purposefully destroying Travis County’s tri-ethnic coalition by dividing it—mainly on racial lines—and scattering it into four or five districts. This purposeful destruction was unconstitutional under Justice Kennedy’s pronouncement in Bartlett v. Strickland.

This map remedies that constitutional violation by reconstituting the tri-ethnic coalition as the centerpiece of a district centered in Travis County. This district is numbered CD35. The combined Black and Hispanic voting age population for reconfigured CD35 is 50.2 percent.

This remediation of the interim map addresses a legal point that has been obscured by the debate over the legislature’s Voting Rights Act violations and the challenges in addressing them: the United States Constitution does not allow for the destruction of this sort of crossover district. This unconstitutional act must be cured independently of the requirements or allowances of the Voting Rights Act.  The statutory requirements of Section 2 should not be confused with constitutional requirements.  And whatever happens regarding Section 5 in the next few days or weeks will not change the crossover nature of former CD25 or the unconstitutionality of its destruction.

The United States Constitution requires the restoration of a crossover district centered in Travis County.  

 

V. Maintenance of Latino voting opportunity district levels in South and Central Texas

Of course, simply remedying this constitutional problem in Travis County does not mean that Latino voting opportunities in the rest of South and Central Texas will be recognized, as the Voting Rights Act requires. Under this proposed amendment, there would be the same number of Latino voting opportunity districts (seven) in the region as there were under the interim map, assuming interim CD23 as an opportunity district. In other words, it is entirely possible to meet the requirements of the Constitution and the protections of Section 2 of the Voting Rights Act. As this map demonstrates, it is disingenuous for the state to argue otherwise.

Justice O’Connor’s opinion in the 1996 Texas redistricting case of Bush v. Vera, 517 U.S. 952 (1996), explained that, while race-conscious redistricting can sometimes be unconstitutional (when, for example, racially polarized voting patterns don’t support it), the state has a compelling interest in meeting the requirements of Section 2 of the Voting Rights Act if it can do so with reasonably compact districts meeting traditional state redistricting criteria.[13]The Central and South Texas districts in this map do just that.

Working from west to east, the seven Latino opportunity districts in this map are numbered CD16, CD23, CD20, CD28, CD15, CD27, and CD34. (The seat anchored in Cameron County, now held by Congressman Vela, is re-numbered CD27.)

The new CD34 would run from Nueces County into Bexar County. It would have an Hispanic Citizen Voting Age Population (HCVAP) of 58.3 percent, significantly above the 50 percent HCVAP threshold required by Section 2 case law and 6.1 percent more than the current CD35. In addition, this new CD34 would appear to meet the criteria for being a performing opportunity district. Looking at a range of reconstituted elections from 2006 through 2012, it would have regularly elected the candidate of choice of Latino voters. So CD34 will be one of the seven Latino opportunity districts in Central and South Texas that can—and, under Section 2, that must—be created, even as the Travis County constitutional violation is remedied.

Furthermore, the interim plan (following the 2011 legislatively enacted plan) left more than 200,000 Latinos in Nueces County electorally stranded in a district where their votes in congressional elections were completely ineffective. White votes would overpower them, and do so convincingly, every time. This proposal puts Nueces County, and its stranded Latino voters, back into an Hispanic opportunity district and gives those voters a chance to cast ameaningful vote in congressional elections.

Such an action is required not only by Section 2 of the Voting Rights Act, but also by the 2006 decision in the case of LULAC v. Perry, 584 U.S. 399 (2006). In that case, the Supreme Court invalidated the congressional redistricting plan that split Laredo in half, isolating almost 100,000 Latinos in a district in which they had virtually no chance of participating in an election in which their candidate of choice could be elected.[14] The interim plan’s stranding of more than 200,000 Latinos in Nueces County has the same functional effect as the invalidated 2003 plan’s stranding of nearly 100,000 Latinos in Webb County. So again, this map would remedy both Section 2 violations and constitutional problems with the interim plan.  

 

VI.   Intentional discrimination in San Antonio’s CD20

This map also remedies another clear constitutional violation in the interim plan. CD20, which previously was represented by longtime Congressman Charlie Gonzalez (and is now held by Congressman Joaquin Castro), has historically included a number of iconic landmarks in San Antonio. In an act that the D.C. court found to be an intentional act of racial discrimination, the legislature removed some of these historic locations and economic generators from CD20.[15] The interim map leaves this violation in place and unaltered. This map addresses this unconstitutional act of racial discrimination. It puts the Alamo, City Hall, the federal courthouse, and the Henry B. Gonzalez Convention Center back into CD20.  

 

VII.  Improvement to CD23

The last item to address in this proposal is CD23. CD23 in the interim map is modestly better than the enacted map. By simply using the state’s own measure of election “performance”—a measure which the D.C. court found unpersuasive—the interim map returned CD23 to the same marginal level of performance it had in the pre-2011 map.[16] Using the state’s inadequate measure, the preferred candidate of Latino voters would win only 30 percent of the time.

Section 2 of the Voting Rights Act requires more. This proposal slightly increases the HCVAP in CD23, to 61.2 percent, from 61.1 percent in the interim map. Looking at the same range of elections to evaluate the performance of the new CD34 as a Latino opportunity district, it appears that it performs more consistently as an opportunity district, with an increase in Latino voting strength. So the slight revision in this map errs on the side of compliance with Section 2’s requirements.  

 

VIII.  Conclusion

I urge you to give serious consideration to this map and the voting rights improvements and remedies it creates for Central and South Texas.

• It honors this body’s policy choices—except where they violate legal requirements.

• It repairs the egregious constitutional violation committed by the destruction of Travis County’s tri-ethnic voting coalition and the crossover district anchored in Travis County.

• It maintains the same number of Latino opportunity districts as in the interim plan while putting CD23 more comfortably into that Section 2 category.

• It remedies the constitutional violation in the treatment of San Antonio’s CD20.

The interim map was never intended to be a definitive resolution to the many legal flaws in the 2011 enacted maps. Rather, it was openly acknowledged to be a stop-gap measure to get the state through an on-rushing election without any more delays.

The D.C. court’s opinion—an opinion whose fact-findings remain particularly telling and pertinent, regardless of the Supreme Court’s eventual findings about Section 5 itself—highlights numerous basic legal flaws that remain embedded in the interim map. These legal flaws can be remedied—and are, in this map, for Central and South Texas—without doing any damage to the legislature’s legitimate policy choices.  

Respectfully submitted,

    

June 10, 2013

 

[1] Perez v. Perry Order of March 19, 2012 (“Perez March 19 Order”) at 2.
[2] Id.
[3] Id. at 1-2.
[4]  Id. at 39, 48, 49, 51, 55.
[5] “Perry, Dewhurst and Abbott speak on redistricting,” Houston Chronicle,Governor Perry and Lt. Governor Dewhurst, June 10, 2013.
[6] Texas v. U.S., 887 F.Supp.2d 133, 159-62 (D.D.C. 2012).
[7] 887 F.Supp.2d at 161 n.32.
[8] 129 S.Ct. at 1242.
[9] 129 S.Ct. at 1249.
[10] 887 F.Supp.2d at 184.
[11] Id. at 185.
[12] Perez v. Perry, State Post-Trial Response Brief (Doc. # 457) at 18.
[13]  517 U.S. at 976-77.
[14] 584 U.S. at 439.
[15] 887 F.Supp.2d at 160-61.
[16] 887 F.Supp.2d at 143-44.
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