Burnt Orange Report

Texas Redistricting Case Begins on March 1

By Phillip Martin

The United States Supreme Court will begin hearing oral arguments for the Texas Redistricting map engineered by Tom Delay on March 1. A decision is expected by early July. Should the Supreme Court eventually rule the map unconstitutional, the previous congressional redistricting plan that was in place for the 2002 primary and general elections would most likely be reinstated.

Now, I'm not a lawyer -- by any stretch of the imagination -- and can never fully appreciate the full range of details and information presented for court cases. Thankfully, our friends at the Lone Star Project have compiled an outline of the key legal points raised in the four Appellants’ briefs. I read through them, and they are very informative and very interesting to read. To read these summaries, click on the link below. If you're especially interested in the precise legal arguments, you may click on the name of any Appelant to read the complete brief.

Ed. note: This summary of the appelants' briefs is provided to us by the folks at the Lone Star Project.

Jackson Appellants’ Brief – The Jackson Appellants’ brief was filed by attorneys J. Gerald Hebert, Paul Smith, and Sam Hirsch on behalf of a broad cross-section of Texans from all races, ethnicities, and regions of the state of Texas, as well as the Democratic congressional interveners. Included among these Appellants are Congressman Charlie Gonzalez, Congressman Gene Green, former Congressman Nick Lampson and Texas State House Representative Richard Raymond. As the primary Appellants in the case, the Jackson brief is the most comprehensive and covers more topics than any other brief. Key arguments include:

1. It is unconstitutional for legislators to redraw election districts in the middle of the decade solely for the purpose of maximizing partisan advantage if a legal plan is already in place.

* During the 2003 redistricting trial in federal court, attorneys for the state and Rep. Phil King, the Texas House sponsor of the DeLay plan, conceded that the plan was intentionally drawn for the sole purpose of maximizing the number of Republicans districts. This partisan purpose was used to excuse any “unintentional” violation of other redistricting principles, including the Voting Rights Act.

* The 2003 mid-decade “re-redistricting” can not be supported by claims that it promoted “partisan fairness” because the plan used in the 2002 elections, as drawn “from scratch” by the three judge panel in the 2001 Balderas case, was based on a demonstration map submitted by the State’s attorneys and the State’s experts. It provided Republicans a partisan advantage in 20 of the state’s 32 congressional districts, according to the state’s own expert witness.

* Mid-decade redistricting done for partisan purposes alone violates the “one-person, one vote” doctrine under the Equal Protection Clause of the Constitution because the use of old census data does not reflect mid-decade population patterns, which a knowledgeable map drawer could use to draw plans solely for partisan gain, disrupting stability and accountability in representation

2. The Voting Rights Act prohibits the State, as part of an intentional effort to maximize partisan gains, from destroying a District in which African Americans have demonstrated their ability to nominate and elect candidates of their choice, even if they do not constitute a mathematical majority of the population in the district.

* Section 2 of the Voting Rights Act protects coalitional districts where a racial or ethnic minority can elect candidates of their choice, even if that minority group does not make up 50% of the district’s population.

* District 24 in the Metroplex should have been preserved and protected under Section 2, because it afforded African-American voters in Southeast Fort Worth the opportunity to elect candidates of their choice, as confirmed by expert witnesses for both the Appellants and the state.

* Both the Texas House and Senate sponsors of this mid-decade redistricting effort recognized in public statements the concern that District 24 would be protected under the Voting Rights Act. They reflected this concern by preserving the 24th District as a safe African-American district in the plans passed by the House and Senate. However, in Conference Committee negotiations, former House Majority Leader Tom DeLay personally interceded and demanded the elimination of the 24th as an effective African American opportunity district in order to eliminate Democratic Congressman Martin Frost and to achieve maximum partisan gain.

3. The State’s 2003 map drew an unconstitutional racial gerrymander in South Texas as a direct result of their effort to maximize partisan gain.

* In order to protect a Republican incumbent in District 23 and eliminate any chance of Hispanic control of that District, the State removed 100,000 Hispanics in predominantly Democratic Webb County and replaced them with 100,000 Anglos in the predominantly Republican suburbs and Hill Country to the north and west of San Antonio. This change “stranded” over 300,000 Hispanics in a “safe” Anglo-dominated Republican seat and violates the Voting Rights Act.

* In an effort to compensate for the loss of the Hispanic opportunity District 23, the State drew an illegal racially gerrymandered “new” District 25 – a bizarre district in which a narrow, sparsely populated “land bridge” connects Hispanic areas of Southeast Travis Co. (Austin) with a concentration of Hispanic areas in the Rio Grande Valley. In this bizarrely shaped district, 89% of the population resides in two distinctly different regions and cultures 300 miles apart.

4. The Court should restore the 2001 court-drawn plan for the 2006 Election

* Should the 2003 map be invalidated, there is no reason to allow another election to be held under an illegal map. The State had a legal plan in place before embarking on its mid-decade redistricting effort. The State never appealed or challenged the 2001 plan in court, and its own expert witnesses testified that the 2001 plan was legal and fair.

* There is precedent in the 1996 Bush v. Vera Texas case for replacing a plan in the middle of an election cycle by canceling primary results in districts found illegal and then conducting an open primary on the November general election date, followed by runoff elections in districts where no candidate received a majority of the vote.

Travis County Appellants’ Brief – The Travis County appellants’ brief, submitted by attorney Renea Hicks, argues that the state’s decision to replace a valid districting plan with a new map in 2003 violates the one-person, one-vote principle because the state did not make a good faith effort to draw districts of equal population.

* The State’s voluntary decision to redraw districts (for partisan gain) using out of date 2000 census data was not a permissible and unavoidable variation from the equal population rule.

* Instead of attempting to adjust and correct the 2003 plan for population variances, the State’s mapmakers used their keen awareness of population changes that had occurred over time and, as evidenced by trial testimony, considered these population changes in tandem with the 2002 election results when drawing a 2003 map that sought to maximize partisanship.

* The State’s unbridled partisan goal in the 2003 mid-decade redistricting is not a legitimate state purpose that justifies incorporating well-known population variances into a redistricting plan.

* The Court should replace the 2003 map with the 2001 Court-drawn plan for the 2006 elections.

GI Forum Appellants’ Brief – The GI Forum brief, presented by Mexican American Legal Defense and Education Fund (MALDEF) attorney, Nina Perales, advanced several arguments under Section 2 of the Voting Rights Act that assert the State’s avowed partisan redistricting goal did not justify dilution of Latino voting strength and elimination of a Hispanic opportunity District (23).

* Dismantling a Latino Opportunity District (23) for the sole purpose of electing the candidate preferred by Anglo voters violates the Constitution and the Voting Rights Act. There is ample evidence that the State intentionally discriminated against Latinos when District 23 was redrawn to eliminate the majority Latino citizen voting age population and voter registration in the district.

* As Judge Ward noted in his dissent in the District Court opinion, GI Forum demonstrated that seven effective Latino Opportunity districts could be drawn in the same territory in which the State only drew six Latino districts (due to the dismantling of District 23 as an effective Latino District), a clear violation of the Voting Rights Act that cannot be justified by creating another Latino district in expanded territory elsewhere in the state.

* The State can not justify the dismantling of District 23 just because the incumbent is Latino when that incumbent is the Anglo-preferred candidate and not the Latino voters’ candidate of choice. Also, it cannot rely on a defense that it was carrying out the wishes of a political party to protect one of its incumbents.

The LULAC Appellants’ Brief – The League of United Latin American Citizens (LULAC) Appellants’ Brief, submitted by attorneys Jose Garza, Rolando Rios, and Luis Vera, Jr., argues that the State’s decision to use outdated census data to redraw a perfectly legal map for the single-minded purpose of maximizing partisan gain violates the one-person, one-vote requirement, and that due to the under population of rapidly growing Latino districts, the burden of this “severe partisan power grab” was placed on the backs of Latino voters.

* A redistricting plan drawn with the “single-minded purpose” of achieving partisan gain violates the one-person, one-vote rule when it uses three-year old census data that under populates Latino districts, because partisan advantage itself is not a legitimate state goal that justifies such population variances.

* The manipulation of population data for partisan purposes, as used by the State in 2003, created disparities that fell most prominently on the rapidly-growing Latino population.

* The 2003 plan used outdated census data to craft a purposefully partisan plan that eliminated, in violation of the 1st and 14th Amendments to the Constitution, a Latino majority district (23) and all competitive districts in which the minority population cast the deciding votes under the pre-existing legal plan, including, among others, the 24th District in Dallas-Fort Worth.