REDISTRICTING IN TEXAS AFTER THE 2010 CENSUS
After the 2010 census, Governor Perry called a special session of the Texas Legislature for redistricting. On June 6, 2011, the Texas Legislature approved a redistricting plan. After its passage, Senator Eddie Lucio of Brownsville said, “How fair is it that although Anglos only make up 45% of the state’s population, they control 72% of our congressional districts. It does not make any sense; it is unfair.”[i] Governor Perry signed the redistricting plan on July 18, 2011.[ii] Thus began several lawsuits against Texas for violating the Voting Rights Act (VRA) of 1965. The state approved redistricting maps were challenged in two federal courts: The U.S. District Court for the Western District of Texas in San Antonio which heard evidence regarding Section 2 of the Voting Rights Act and The U.S. District Court for the District of Columbia which heard evidence regarding Section 5 of the Voting Rights Act. Both courts found Texas violated Sections 2 and 5 of the VRA. Texas subsequently appealed to the U.S. Supreme Court which heard final arguments on January 12, 2018.
REDISTRICTING: WHAT IT IS
The U.S. Constitution calls for a decennial (every 10 years) census to reapportion the number of congressional seats according to the current size of the U.S. population.[iii] There are 435 congressional seats among the 50 states. These seats are reapportioned among the 50 states after each decennial census. Texas had 36 congressional districts based on the 2010 Census. In the 2020 Census, Texas gained two seats, bringing a total in 2021 of 38 congressional seats, due to an increase in population, particularly of Hispanics,[iv] as Hispanics accounted for more than half of the state’s population since 2010.[v] The boundaries of all the individual congressional districts within Texas will be redrawn by the state legislature. This revision of the existing districts will result in two new districts with different boundaries, and this revision of the district boundaries defines what redistricting is. Additionally, the Texas Constitution requires the legislature to redistrict the Texas House and Texas Senate following the publication of the U.S. decennial census.[vi]
REQUIREMENTS FOR REDISTRICTING
The mandate that must be followed for redistricting is that all districts must be close to equal and adhere to one-person, one-vote.[vii] Federal law does allow less deviation for congressional districts than for state legislative districts, requiring congressional districts to be as equal in population as practicable. Congressional districts’ deviation from the ideal district size must be justified based on a rational state policy or must be found unavoidable despite a good faith effort to draw districts with equal proportions.[viii] In state legislative redistricting, the legislative districts must be equal or nearly equal in populations. In a Texas case, White v. Register,[ix] the U.S. Supreme Court set the standard for acceptable population deviation; the combined deviation of the most populous district and the least populous district may not exceed 10% from the ideal population, which is the number of residents if all districts were populated equally.
VOTING RIGHTS ACT OF 1965
States must also abide by the guidelines of the Voting Rights Act of 1965 (VRA). The Voting Rights Act of 1965 was designed to combat racial discrimination in the voting process. This includes discrimination in the redistricting process. Redistricting techniques once egregiously discriminated against voters of color by dividing large minority communities across several districts to weaken their voting power or by packing them into a few heavily concentrated districts to avert their voting power from the remainder of the region. Since the passage of the Voting Rights Act, federal courts have found Texas violated the Voting Rights Act by disenfranchising voters in one way or another in redistricting. Because of its history, Texas was required to run any changes to its voting procedures, including changes to its district boundaries, by the U.S. Department of Justice. The presence of Section 5 of the VRA, the preclearance provision, required the state of Texas to receive clearance from the Justice Department before implementing new state and congressional districts until 2013. Section 2 of the VRA provides the legal bases for filing lawsuits against discriminatory redistricting plans. This section prohibits states and local governments from imposing voting laws disproportionately harming people of color or laws motivated by the purpose of discriminating against minority voters. Section 2 explicitly states that “No voting qualification or prerequisite to vote shall be imposed by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color or status as a member of a language minority group.[x] Section 2 has successfully also allowed voters to challenge a variety of redistricting schemes intended to dilute voting power of minorities. Vote dilution occurs when officials draw district lines to prevent certain voters from having a fair chance at winning elections. Another way dilution occurs is by packing, a process by which voters are packed or concentrated into one or more districts to decrease the power of their vote or limit their electoral power to too few districts. Cracking is also used to dilute the voting power of minority voters. Cracking is the process by which voters who could form a majority in one district are split up into many districts which also diminishes their voting power. Section 2 has also been used to challenge the failure to provide language assistance and voter ID laws. In a Texas case, Section 2 of the VRA was used to challenge the Texas voter ID law. In Veasey v. Abbott, the court held that the Texas voter ID law was enacted with racially discriminatory purpose, in violation of the Fourteenth and Fifteenth Amendments and Section 2 of the VRA.[xi]
THE 2010 U.S. CENSUS RESULTS
According to the 2010 U.S. Census reapportionment data, Texas gained four congressional seats in the House of Representatives in the decennial redistricting of 2011, more than any other state in the U.S.[xii] The new seats came as a result of significant population growth in Texas over the previous decade.[xiii] Hispanics accounted for the largest portion of Texas growth. Conservative estimates showed Hispanics accounting for approximately two-thirds of the state’s nearly four million new residents.[xiv] While the increase of new Texans meant more representation in Congress, the shape representation would take remained uncertain until the redistricting maps were scrutinized and obtained preclearance by the Department of Justice or from the US District Court of Washington D.C. In 2010, redistricting plans from Texas required preclearing under Section 5 of the VRA.[xv]
SECTION 5 OF THE VOTING RIGHTS ACT
U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
In July 2011, the Texas Attorney General petitioned the U.S. District Court for the District of Columbia for a declaratory judgment under Section 5 of the Voting Rights Act seeking to preclear the legislatively enacted state plan. The D.C. district court heard the case in January 2012 and issued an opinion denying Texas preclearance in August 2012 on the grounds the state failed to demonstrate that the plan was not enacted with discriminatory purpose.[xvi] The court focused its analysis of Congressional District 27 that includes the cities of Corpus Christi and Brownsville, Texas, and which had a twenty-seven-year history of representation by a Hispanic Democrat. In 2010 an Anglo Republican won the seat because apparently the enacted new redistricting plan redrew the boundaries such that it became a majority Anglo district. In its conclusion, the D.C. district court announced that the State of Texas used an improper standard to determine which districts afforded minority voters the ability to elect their preferred candidates of choice.[xvii] The preclearance denial meant a lengthy trial was needed to reach a full decision on Texas’ redistricting maps. This fact made interim maps a must in order to minimize delays to the 2012 elections. Texas Attorney General Greg Abbott said, “the court expanded protections of the VRA, and the State would appeal this flawed decision to the U.S. Supreme Court.”[xviii] Considering its earlier decision regarding the need for preclearance under Section 5 of the VRA in the Shelby case, the U.S. Supreme Court dismissed the denial of preclearance and sent the case back to the District Court for the Western District for further consideration.[xix] On December 3, 2013, the District Court for the Western District dismissed the preclearance action as not required.[xx]
SECTION 2 OF THE VOTING RIGHTS ACT
U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION
In September 2011, voters from four state senate districts filed a federal complaint in the U.S. District Court for the Western District of Texas, San Antonio Division, against state officials, alleging dilution of minority voting strength in their districts.[xxi] The plaintiffs alleged that the plan enacted by the legislature diluted minority voting strength in the Dallas and Tarrant County area and violated the one-person, one-vote rule. The first of the consolidated cases was filed in the Western District Federal Court, seeking judicial intervention in the redistricting of the Texas senate and house, given the 2010 Census.[xxii] The plaintiffs alleged that instead of seeking districts with equal populations, Texas aimed for disparities of no more than 10% and that Texas was improperly regarding incarcerated prisoners as residents of their rural counties, thereby diluting the voting strength of the residents. A second consolidated case was filed in the Western District Court in San Antonio by the Mexican American Legislative Caucus (MALC), alleging malapportionment and discriminatory redistricting. [xxiii] MALC further alleged that the 2010 Census undercounted Hispanics. A third consolidated case, filed in the Western District Court by the Texas Latino Redistricting Task Force, alleged malapportionment and Latino vote dilution in the Texas congressional and house districts.[xxiv] A fourth federal case joined the action, claiming new congressional districts were drawn to ensure that population gains in minority communities from 2000 to 2010 did not afford minority voters increased electoral opportunity.[xxv] LULAC joined the consolation in October 2011, challenging the redistricting of the Texas state senate districts.[xxvi]
In the U.S. District Court for the Western District of Texas, a three‐judge panel, appointed to hear the case as provided by federal law, conducted a bench trial. On September 15, 2011, the panel began hearing closing arguments from the plaintiffs. Representative Mark Veasey’s lawyer said, “let’s not pretend the state did not know the racial implications of what they were doing. They knew it at every click of the mouse.”[xxvii] The Mexican American Legislative Caucus (MALC) argued how rural communities, coined as “colonias” and inhabited largely by poor Hispanic immigrants, were undercounted by the 2010 Census. Judge Ramon Garcia of Hidalgo County believed the census tally of about 750,000 county residents was short by as many as 250,000 people, an undercount that could mean $300 to $400 million in lost federal funding for education, health and infrastructure.[xxviii]
U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION
After the District Court of Columbia denied Texas preclearance and before the U.S. Supreme Court vacated the denial of preclearance and remanded the case for further consideration, the District Court in Texas with the assistance of the staff of the Texas Legislative Council began reviewing interim map proposals.[xxix] The court implemented its own interim maps for the house, senate and congress, increasing minority voting power.[xxx] The state requested a stay on the use of the court’s interim maps, which the U.S. Supreme Court granted in December 2011, and on January 20, 2012, the Supreme Court vacated the interim maps saying they did not sufficiently incorporate Texas’ political and policy judgment as reflected in the challenged maps.[xxxi] The Supreme Court remanded the case for further proceedings. In February 2012, the District Court in San Antonio ordered a new interim state plan that more closely followed the legislature’s plan for the 2012 elections. In June 2013, the 83rd Legislature, 1st Called Session, enacted the court‐ordered interim senate and house plan as the permanent plans. Plaintiffs and the state advised the San Antonio District Court that all parties in the federal case agreed to the 2013 newly enacted legislative plan as the final remedial plan, and the District Court entered a final judgment.[xxxii] On June 26, 2013, the governor signed into law the new redistricting plan for the Texas house, senate and congress.[xxxiii]
SECTION 2 OF THE VOTING RIGHTS ACT
U.S. DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, SAN ANTONIO DIVISION
On July 25, 2013, the Justice Department advised the San Antonio Federal District Court that if it found intentional voting discrimination in the 2013 redistricting cases before it, it was empowered under section 3 (c) of the VRA to retain jurisdiction over Texas’ voting laws and subject them to requirements like those provided for in section 5.[xxxiv] The San Antonio Federal District Court decided to allow Texas to proceed with the new 2013 legislative redistricting maps while the court further considered the merits of racial gerrymandering in the 2013 maps under Section 2 of the VRA.[xxxv]
The three-judge panel in San Antonio found that the 2013 maps of Texas violated the 14th Amendment and the VRA when district lines were drawn by both racial gerrymandering and intentional vote dilution in Dallas, Tarrant, Nueces, Hidalgo, Bexar, El Paso, Bell and Harris Counties.[xxxvi] The three-judge panel issued a ruling to the congressional maps, holding that four districts ( TX-23, TX-26, TX-27, and TX-35) were unconstitutional gerrymandered racially. The panel also ruled that Texas had unconstitutionally and intentionally packed and cracked minority voters in the Dallas-Fort Worth area and in the creation of TX-23. However, the panel rejected intentional vote dilution claims related to the Houston area. The three-judge panel also found several districts violated one-person, one-vote requirements and that one district in San Antonio had been drawn as a racialized gerrymandering. The court gave the state until August 29, 2017, to indicate whether it would hold a special session of the Legislature to redraw the map and set a remedial hearing, in the event the state chose not to redistrict. Governor Abbott appealed to the U. S. Supreme Court, and on September 12, 2017, the Supreme Court granted the stay and halted the redrawing of maps pending a hearing.
THE U.S. SUPREME COURT
On January 12, 2018, the U.S. Supreme Court agreed to hear the State of Texas’ appeals to rulings on its redistricting plans. On June 25, 2018, in a 5-4 decision, the U.S. Supreme Court in Abbott v. Perez[xxxvii] reversed the lower court’s findings that Texas intentionally discriminated against Latino and African American voters in adopting the 2013 congressional and state house maps. In addition, the Supreme Court reversed findings of violations of the VRA and racial gerrymandering, holding that only one of the challenged state house districts, HD90, in Tarrant County, was an unconstitutional racial gerrymander.
In the 5-4 ruling in the Abbott v. Perez case, the U.S. Supreme Court found the lower court erred in its finding that several districts were racially gerrymandered and left them in place. The court did find just one district was an impermissible racial gerrymander. In the opinion written by Justice Sam Alito, the court said the challengers did not sufficiently show the Texas maps as tainted by “discriminatory intent.” Furthermore, the justices refused to strike down two state legislative and one congressional district maps on the ground of alleged “discrimination in effect” rather than intent. The justices examined the four districts that the lower court ruled should be struck down on racial gerrymandering grounds. Three of them, the lower court claimed, were discriminatory in effect by diluting minority votes (without showing intentional discrimination). But Alito and the conservative justices disagreed, concluding the plaintiffs had not sufficiently proved discrimination. Then there was the 90th state house district, which the U.S. Supreme Court found was drawn in 2013 on specifically racial grounds. The U.S. Supreme Court concluded the legislature went through various versions of it, in which they moved Hispanic or black voters in or out. Alito and the conservative justices found that this was in fact an “impermissible racial gerrymandering.” In the end, Alito concluded that it was up to the plaintiffs to prove that the Texas legislature of 2013 “acted in bad faith and engaged in intentional discrimination and that the evidence in the record is plainly insufficient to prove that.”[xxxviii]
Justice Sotomayor and three liberal justices disagreed, writing a scathing dissent making clear that the majority went “out of its way” to try to guarantee Texas’ continued use of much of its discriminatory maps, at serious cost to our democracy. The ruling, Sotomayor wrote, “comes at a serious cost to our democracy, and means that minority voters in Texas will remain underrepresented despite undeniable proof on intentional discrimination in map drawing.”[xxxix] She disputed Alito’s claim that the 2013 maps were in the clear because there was little direct evidence of discrimination in their crafting. She agreed with the lower court judges that “there was substantial evidence the new maps were adopted to insulate and thus continue to benefit from the discriminatory taint of its 2011 maps.”[xl] She also disputed Alito’s analysis that discrimination in effect was not sufficiently proven in three of the four remaining districts. Sotomayor writes that voters’ rights to equal participation means little if courts do not remain vigilant in curbing States’ efforts to undermine the ability of minority voters to exercise that right meaningfully. “The majority,” she says, “does great damage to that right of equal opportunity because it refuses its enforcement, all for the purpose of letting Texas use electoral maps that in design and effect burden the rights of minority voters.”[xli]
Thus, it seems Alito and the conservative justices who are in the majority see the case as more of a partisan gerrymandering matter where district lines are drawn to benefit one party over another. But Justice Sotomayor and the three liberal justices see the Texas case as more of a racial gerrymandering matter than partisanship. Gerrymandering on racial grounds is forbidden under the Equal Protection Clause of the 14th amendment and the Voting Rights Act of 1965 which require states to consider the impact on racial representation when drawing districts. The political takeaway is that the court is divided on what evidence it thinks is sufficient to prove racial gerrymandering and how aggressively the court should step in and block racial gerrymandering. The four liberal justices want the court to take a more active role in protecting racial minorities in the redistricting process. But the five conservative justices want to set a high bar for when the court should step in to strike down a state map on racial grounds, and they are in the majority.
THIS YEAR WILL BE DIFFERENT
As stated in the beginning, Texas gained two seats bringing the Texas total in 2021 to 38 congressional seats, largely due to an increase in population, particularly of Hispanics who accounted for more than half of the state’s population growth since 2010. The boundaries of individual congressional districts within Texas will be redrawn by the state legislature. This revision of existing districts resulting in two new districts with different boundaries is redistricting. However, this year will be different.
In 2013, under Shelby v. Holder,[xlii] the U.S. Supreme Court gutted the Voting Rights Act of 1965 and ruled the preclearance provision, section 5, as outdated and that states like Texas will be able to implement new legislative and congressional districts without having to prove ahead of time that the maps do not undermine the voting rights of voters of color. Additionally, at the federal level, the U.S. Supreme Court has refused to curb what is known as “partisan gerrymandering” which occurs when a political party manipulates the redistricting process for political advantage, regardless of what the voters want.[xliii] Until the court or new legislation curbs partisan gerrymandering, voters have one less tool to fight back against redistricting plans that manipulate voters based on party affiliation. Furthermore, on July 1, 2021, in Brnovich v. Democratic National Committee, the U.S. Supreme Court overturned a Ninth Circuit Court ruling that the Arizona voting laws restricting how ballots are cast do not violate Section 2 of the VRA. The Court upheld two provisions of the Arizona voting laws allowing in-person ballots cast at the wrong precinct to be discarded and restricting a practice known as “ballot collection,” requiring that only family members, mail carriers and election officials can deliver another person’s ballot to a polling place. The Court ruled “neither Arizona’s out of precinct rule nor its ballot collection law violates Section 2 of the VRA, and that Arizona’s out of pocket precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the usual burdens of voting.”[xliv] The Ninth U.S. Circuit Court of Appeals had previously invalidated both Arizona provisions under Section 2 of the VRA, provisions stressing the State’s long history of race-based discrimination against Americans Indians, Hispanics and African American citizens and highlighting that a pattern of discrimination against minority voters had continued to the present day.
The ruling in Shelby v. Holder weakening Section 5 of the VRA, preclearance, will help greenlight many of the same laws the Texas legislature is trying to pass in its special session this year. For instance, Texas is pushing for a ban on after-hour voting and a mandate to limit Sunday early voting as well as requiring voters requesting absentee ballots to provide their driver license number or social security number. Now more than ever, because of these newly enacted restrictions, Texas voters must participate in the redistricting process to prevent the Republican-led Texas legislature from engaging in discriminatory redistricting.
In Texas, the Legislature begins another special session in early fall for redistricting. It is expected that the Census Bureau will release its redistricting data in mid-August. The new 2021 redistricting maps will remain in use for the next 10 years. The maps will decide the district you live in and who you will vote to represent you in the state’s congressional and legislative districts. Who you can elect at the national and statewide levels depends on the district you live in. Also, the way district maps are drawn decides which party controls the national and state legislative bodies. Redistricting is about equal representation and about who has influence in the election of our representatives. Because the victors are the ones who write history, many in the past and present have attempted using redistricting to entrench their political power for selective populations and to exclude communities of color from electing candidates of their choice.
Now that the curtain opens for 2021 redistricting, this redistricting process to determine new district maps for the 2022 midterm elections will require the participation and collaboration from all of us. Redistricting can be a powerful mechanism to promote equality, but we must get involved and actively participate in the process. It is important that the Hispanic community understand it has a stake in how districts are drawn and that it’s this community that voices its opinions. This voice has the potential to be used to benefit all of us, or it can be used to disadvantage us. Participation in the process is therefore vital. You are encouraged to contact the House Redistricting Committee, composed of State Rep. Todd Hunter, chairman, Toni Rose, Vice chair, Craig Goldman, Rafael Anchia, Jacey Jetton, Ryan Guillen, Brooks Landgraf, Ina Minjarez, Geanie Morrison, Joseph Moody, Andrew Murr, Senfronia Thomson, Mike Schofield, Chris Turner, and James White. The Senate Committee on Redistricting is comprised of Chair Joan Huffman, Juan, “Chuy,” Hinojosa, Vice Chair, Carol Alvarado, Paul Bettencourt, Brian Birdwell, Dawn Buckingham, Donna Campbell, Kelly Hancock, Bryan Hughes, Nathan Johnson, Eddie Lucio, Jr., Jose Menendez, Robert Nichols, Angela Paxton, Charles Perry, Royce West, and John Whitmire. You can contact each member by email by following the format of firstname.lastname@example.org or email@example.com. You can also visit the Texas redistricting website, redistricting.capitol.texas.gov and open the public input portal to leave a comment. To view all redistricting proposals, you can use the public website that displays maps and demographics for current and proposed state and congressional legislative districts by going to dvr.capitol.texas.gov. To contact your state representative or senator, the web tool that links any address in Texas to your current state and congressional district representatives is wrm.capitol.texas.gov. When you email your legislator, let them know you are aware and concerned over how your area will be redistricted and that you expect them to ensure that the districts they draw are fair. It is important to emphasize that the districts be composed of individuals who have similar concerns and interests. The districts should minimize the division of communities with similar interests like shared language, shared festivals, shared transportation infrastructure, shared affiliation with common place of worship, parks, recreation areas. They should not favor political parties, officeholders, or political candidates. Above all, it is important to note that the United States’ population is growing rapidly, especially Hispanic communities.[xlv] Since 2010, Hispanics account for over half (52%) of all U.S. population growth. Based on the 2020 Census apportionment numbers, Texas’ 4 million new residents earned the state two more seats. It is important legislators understand that as voters we are aware of the power of our vote. Hispanics expect to become the largest population group in Texas as soon as 2022. The US Census showed the Hispanic population climbing to nearly 11.4 million and accounted for about 65% of the state’s growth. The Hispanic community is growing in numbers across the state, but it is significant to remember that 47% of Texas Hispanics now live in the state’s five biggest counties: Harris, Bexar, Dallas, Tarrant and Travis. Harris County leads the list with more than 2 million residents. But Hispanic growth since 2010 continues to be most significant in Tarrant County, home to Fort Worth. The new redistricting map should reflect the rapid population growth of Hispanics in Texas. The question is whether Texas maps fairly reflect the diversity of the state and ensure that Hispanic Texans can elect their candidate of choice.
Although redistricting historically has been used to prevent the full participation of Hispanics in our democracy, it is also a powerful tool for the Hispanic community to augment its power. But we must be vigilant especially after the Shelby County U.S. Supreme Court decision of 2013. After this ruling, the City of Pasadena, Texas, adopted a new redistricting plan and changed its voting structure to disadvantage Hispanic voters. The Hispanic population in Pasadena was growing, and Hispanic-preferred candidates were about to gain most of the seats on the city council. In response, Pasadena eliminated a Hispanic majority district and changed its election structure to make it more difficult to elect a Hispanic-preferred candidate. In the absence of Section 5 protection of the VRA which would have blocked this change before it went into effect, Hispanic citizens, represented by MALDEF, filed suit and won a court decision that Pasadena’s redistricting changes violated Section 2 of the VRA. The court restored the City’s previous redistricting map and ordered Pasadena back under Section 5’s preclearance process. Section 3(c) of the VRA allows a federal judge, upon finding that a jurisdiction violated the 14th or 15th Amendment, to require that jurisdiction to submit for preapproval any voting prerequisite to voting. Section 3(c) has now been thrust into prominence by the Supreme Court’s decision in Shelby County. The City of Pasadena is the only jurisdiction ordered by a court to comply with Section 5 of the VRA post-Shelby County.[xlvi]
The impact of the U.S. Supreme Court’s decision in the Shelby case to render Section 5 inoperable will continue to reverberate in the post-2020 redistricting process. Texas will no longer have to preapprove its state redistricting plan before it can be implemented. Previously, this scrutiny would have ensured its redistricting plan did not weaken the ability of communities of color to participate. Now we must conduct this scrutiny throughout the redistricting process, and if discriminatory maps get implemented, we must challenge them in court. We must take responsibility for monitoring state voting laws and election practices. We must initiate efforts to combat discriminatory voting laws as soon as they are proposed, to minimize the damage that is done, particularly so elections are not held using discriminatory practices. Before the Shelby decision, the federal government served as a safety net for catching these discriminatory laws. However, this is no longer the case. We must be our own safety net like the voters of the City of Pasadena. We also need to advocate that Congress must pass the John Lewis Voting Rights Advancement Act (H.R.4).[xlvii] If passed by Congress, this legislation would provide the tools to address discriminatory practices, including discriminatory redistricting. The act would apply to states that have suppressed the right to vote within the last 25 years. States covered by the Act would be required to have certain policies, with a historically discriminatory impact, reviewed before they go into effect. Overall, the main take away from all this is that we must pay attention and act.