Texas redistricting case: Five things you need to know

at 03:16 PM ET, 12/13/2011

For the second time in five years, Texas’s new congressional map is headed for a date with the Supreme Court.

And the results could be very significant, both in Texas, in the 2012 election, and for the future of the congressional redistricting process.
Texas Attorney General Greg Abbott (R). (Photo by Gerald Herbert)

So, for those who aren’t versed in legalese, redistricting, or the Lone Star State generally (it’s not all about Texas Gov. Rick Perry), here’s what you need to know

1) This is what happened, in a nutshell: Texas is gaining four congressional seats thanks to population growth, and the Republican Party, which controls the state legislature and governor’s mansion in Texas, drew an aggressive new congressional map that would allow the GOP to gain three of those four seats.

The problem for Texas Republicans is that, and for the lawmakers in other Southern states, their maps have to gain what is called “pre-clearance” from either the Justice Department or a Washington, D.C., district court, which verifies that their maps comply with the minority-protection standards in the Voting Rights Act.

Texas Attorney General Greg Abbott (R) chose to seek pre-clearance for the Texas 2012 map through the D.C. court, but the Justice Department decided to fight the map in court. The DOJ argued that the Texas map didn’t create enough majority-minority districts. (The population growth over the last decade was almost exclusively in minority populations, yet only one of four new districts created was majority-minority).

Because that case wasn’t going to be resolved in time for the 2012 primaries, the D.C. district court ordered a three-judge panel in San Antonio to draw an interim map to be used for at least the 2012 election. The three-judge panel drew a new map that, instead of giving Republicans three new seats, would likely give Democrats an equal number. So Abbott filed with the U.S. Supreme Court to block that map, which the Supreme Court has done, pending a January hearing.

Complicating matters further was the fact that filing for Texas’s state legislative and congressional elections had already begun, and concludes this week. With there being no legal map, of course, candidates can’t file for districts that don’t yet exist.

2) Because of that uncertainty, the San Antonio court on Tuesday planned to hold a hearing on whether (or rather when) to move the primaries for those races.

“It’s not unusual for federal courts to change primary and election schedules, especially after the state’s plans are rejected,” said Democratic redistricting lawyer Jeff Wice.

But that’s not the only problem created by the lack of a legal map.

There is disagreement about whether the state’s March 6 presidential and statewide primary should remain on that date, even if state legislative and congressional primaries are delayed, such as until May.

The state GOP chairman has asked that the presidential primary stay put, but because the state has runoffs, that would mean holding three separate elections before the general election — which would be both a costly and logistical problem for election administrators. There is plenty of pressure, even from Republicans, to pick a single primary date.

The state parties also have to deal with the likelihood that they will have to refund candidate filing fees to candidates who decide not to run, creating financial strain for them. The Texas GOP has also said it cannot move its June convention, because it has too much money tied up in it. Thus, the convention might be held before runoffs are resolved.

“The practical problems here are legion,” said Justin Levitt, a redistricting expert at Loyola Law School.

3) Setting aside logistical problems, there seem to be a few possibilities when it comes to the map that will be used for the 2012 election.

(The Supreme Court hearing is set for Jan. 9, while the D.C. district court trial is set for Jan. 17 to 26. So the rulings could come out around the same time.)

It seems very unlikely that the map drawn by Republican state legislators will be used for 2012. The fact that the D.C. district took up the case suggests it sees something objectionable. And even if the state legislature were able to draw a new map to comply with the court’s ruling, it would have to go through pre-clearance again and wouldn’t be ready in time for the 2012 election.

It’s also pretty unlikely that the Supreme Court will sign off on the three-judge panel’s interim map. Like the D.C. district court, the Supreme Court’s decision to take up the case suggests there is something it doesn’t like about the interim map.

In the end, it seems pretty likely that the three-judge panel in San Antonio will have to draw a new map, with some new guidance.

The real question, then, is what kind of instruction the Supreme Court offers. Those watching the process suggest two potentially far-reaching outcomes (among many other possibilities, which are too numerous to name).

First, the Supreme Court could tell the three-judge panel in San Antonio that it needs to draw something closer to the map drawn by the state legislature. Or second — and this is the Nuclear Option — it could say that the state should simply use the map drawn by the state legislature.

The former option would set a new standard when it comes to court-drawn maps. Currently, court-drawn maps are drawn with deference to the last constitutionally-approved map available (i.e. the existing map). Changing the standard would give state legislatures greater power over the final product, even in the event that their maps are invalidated.

The latter would be the big one, as some suggest it would essentially invalidate the section of the Voting Rights Act — Section 5 — that requires states like Texas to get pre-clearance. Essentially, the maps would no longer have to be pre-cleared. This would allow these states greater freedom to draw their maps and increase the burden on minority groups and others who may fight the maps in court. These groups would no longer have an avenue to stop the maps before they are enacted.

4) Practically speaking, the number of congressional seats at stake isn’t huge — maybe one or two.

The GOP-drawn map created three new GOP-leaning seats and one Democratic seat, while the court-drawn map created three Democratic seats and one Republican. That’s a net difference of two seats between the two extremes.

(Republicans don’t like that the court-drawn map also made things tougher for Reps. Michael McCaul (R) and Joe Barton (R), but those districts will continue to favor them.)

So assuming that the final product is somewhere in between, we’re only likely to see one or two Houseseats at stake when this situation goes to court in January. Given that Democrats need 25 total House seats to retake the majority, that’s a small but significant piece of the puzzle.

5) Keep an eye on the backlash over the Texas GOP’s handling of the maps. Some Republicans nationally are privately griping about the state legislature’s aggressive map and Abbott’s handling of the pre-clearance situation, suggesting they were too cute by half and have brought this situation upon themselves.

Hindsight, of course, is 20/20. But given what happened in 2006, when the Supreme Court invalidated part of a Texas GOP-drawn congressional map, some say a higher degree of caution is warranted.

“People are starting to realize what happened here,” said one Republican source. “If the San Antonio plan gets approved without any substantive changes, there’s someone who will have to own that disaster.”

 
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