On March 10th a federal district court panel in San Antonio Texas ruled that the State legislature’s 2011 congressional redistricting map was drawn in manner that violated the U.S. constitution. The court found several districts in the map were the product of intentional racial discrimination and minority vote dilution. While the ruling was a surprise, considering the case had been drawn out for nearly six years, it was also slightly anti-climactic since the ruling referred to a map that Texas no longer uses as its congressional districts. The court had drawn an interim map in 2012 after finding that some plaintiffs were likely to succeed on their claims. The Texas legislature adopted the map permanently in 2013, perhaps hoping to put the quagmire of Texas redistricting behind them; but they will have no such luck.
The court’s decision last week went to great lengths to explain why ruling on the original 2011 map is not moot. Indeed, several of the districts in the 2013 map are unchanged from the 2011 version – but were struck down by the court as unconstitutional.
So what is the way forward for plaintiffs, Texas and the courts? The answer is there are many roads forward. The case is at a metaphorical crossroads, no one knows what path it will take, but here is what the parties to the case must consider:
The Current 2013 Map
This map is a slightly revised version of the court’s own interim map. At first glance, you may think that if it was good enough for the court in 2011, it must be a perfectly fine, solid, constitutional map, but you would be wrong. The court admitted in its opinion that its initial ruling on congressional district 35, which did not find enough evidence to rule it a racial gerrymander, was “in error.” With the benefit of “full examination” of the evidence, the court found district 35 to be an unconstitutional racial gerrymander. Congressional district 35 was left untouched in the court’s interim map, which is now Texas’ current map. So the plot thickens.
The court may now proceed with a trial or some type of hearing on the 2013 map. Texas redistricting expert, attorney and Brennan Center General Counsel, Michael Li opines that the court could consider the 2013 map if one of the plaintiffs files for an injunction. Whether it is at the court’s initiative or at a plaintiff’s prodding, the court will likely move to consideration of the 2013 map.
Whether Texas Goes Back Under Preclearance
Most who follow redistricting developments know that in 2015 the Supreme Court severed a significant portion of the Voting Rights Act by invalidating the coverage formula for the preclearance regime (Shelby v. Alabama). The result, is dozens of states and localities that no longer need preapproval of any voting changes, which includes redistricting maps. Without supervision from the Justice Department or the court under preclearance, some states have enacted various laws that many say are too restrictive and disenfranchise minority voters. Shelby however, did nothing to dismantle the bail-in provisions of the Act, which allows a court to put a guilty party under preclearance supervision. Indeed this case, is more about getting Texas back under preclearance supervision than it is about anything else. The district court seems well aware of this, since it speaks of the need to establish the factual record showing the intentional vote dilution by the Texas legislature in drawing the original 2011 map so that plaintiff’s requests for the court to institute bail-in would be considered properly. The court will surely consider bail-in at some point, but it may wait until it has disposed of the claims against state house map.
The House Districts Map
Claims against the Texas senate map have been resolved, but the map of districts for the Texas house is still pending before the court. Many of the claims regarding the house map are similar to the congressional map. The court may decide to resolve the claims against house districts before it considers bail-in under the Voting Rights Act.
The Upcoming Elections
Filing season for candidates in Texas begins in November for next year’s primary and general election. Considering that Texas has already conducted elections within the last five-year period under a congressional map that the court now says is unconstitutional, there will be pressure to resolve all of these issues in time for 2018 elections in Texas.