by George Christian
Judging from the past half century, only one thing is certain in this year’s redistricting battle in the Texas Legislature: the lawyers who attack and defend the maps will do very well, indeed.
The modern history of legislative and congressional redistricting begins, as it does across the southern United States, with the United States Supreme Court’s 1962 decision in Baker v. Carr (369 U.S. 186). Reversing decades of abstention from the “political” issue of redistricting, the court held that the federal courts were compelled to step in if state legislators violated constitutionally-guaranteed voting rights through the exercise of their redistricting power. Three years later Congress enacted the Voting Rights Act, which subjects specific states, including Texas, to statutory redistricting standards that protect minority voting rights and require prior federal approval of legislatively-drawn maps. It is important to note that while local jurisdictions, such as cities, counties, and school districts, are likewise subject to federal constitutional and Voting Rights Act standards, this brief overview focuses on the Legislature’s history of drawing districts for Congress and the state house and senate.
The Texas Constitution grants specific redistricting authority to the Legislature (Art. III, §§1, 28). Nothing requires the Legislature to redraw congressional districts at any particular time, and it has frequently drawn congressional maps in special session (for example, in 1971, 1981, 1991, and 2003). The constitution specifies that legislative redistricting for the Texas House and Senate must occur in the first regular legislative session after publication of the U.S. decennial census. Since 1950, census data has been published in the spring of the year following each census and the Legislature has drawn, or attempted to draw, legislative districts in each of those regular sessions (51, 61, 71, 81, 91, 01). Indeed, in 1971 the Texas Supreme Court ruled that the Legislature had to act during that regular session, even if only a few days remained following publication of the census (Mauzy v. Legislative Redistricting Board). If the Legislature fails to act (as it did, for instance, in 1971, 1981, and 2001), the Legislative Redistricting Board, created by constitutional amendment in 1948 and composed of the Lieutenant Governor, Speaker, Attorney General, Comptroller, and Land Commissioner, takes over the responsibility for fashioning new state senate and house districts. The LRB has no jurisdiction over congressional redistricting.
Texas redistricting has a history of complex litigation and political fireworks. Probably the most famous (or notorious) event occurred in 2003, when Democrats in both the Texas House and Senate (the so-called “Killer D’s”) fled the state in order to break a quorum and prevent enactment of a revised congressional map. Democrats objected particularly to the overtly partisan nature of revising congressional districts not in the usual course of a legislative session following the census or in response to a court order, but in one immediately following an election that changed the make-up of the Legislature itself (specifically, the House, which turned from a Democratic to Republican majority in the 2002 election). To make matters even more contentious, U.S. House Majority Leader Tom DeLay (R-Sugarland) played a prominent role in raising money for Texas House candidates and then pushing state leaders to undertake redistricting “out of order.” The Democrats’ parliamentary tactics, while spectacular political theater, did not ultimately succeed and has had no lasting impact on redistricting law or the legislative redistricting process (though it may have contributed to Democratic electoral gains in the Texas House in 2005, 2007, and 2009). It did, however, result in a six-seat swing in favor of Texas Republicans in the 2004 election: Texas’ congressional delegation went from a 17-15 Democratic edge in 2002 to a 21-11 Republican bulge in 2004 (in the wake of November’s election, the GOP majority has grown to 23-9).
The Legislature’s 1991 congressional redistricting bill, however, was a different story. In Bush v. Vera, 517 U.S. 952 (1996), the court determined that the Legislature’s map (which included the famous fish-hook shaped District 30 in Dallas County) deliberately used race as a proxy for, in this case, Democratic voters. Although the Justice Department had approved the Texas map, the high court ruled that it violated the Voting Rights Act. Federal courts also rejected the Legislative Redistricting Board’s Texas house maps in both 1971 and 1981, and have ordered changes in congressional maps on numerous occasions (1973, 1982, 1996, 2001, and, most recently, 2006). Additionally, the Texas Supreme Court has at least twice rejected legislative redistricting for violating the Texas Constitution’s “county line rule” (districts may only split counties with compelling justification). In 1971 and 1981, the Legislature’s map split 33 and 34 counties, respectively. The state claimed that it had to divide these counties in order to comply with the Voting Rights Act, but in each case the Texas Supreme Court found that alternative maps could be drawn that both complied with the Act and maintained constitutionally required county lines. Ironically, State Rep. Tom Craddick of Midland, who served as Texas House Speaker during the bitter 2003 redistricting battle, initiated the successful 1971 challenge that invalidated the Texas House map (see Smith v. Craddick, 471 S.W. 2nd 375 (Tex. 1971)).
Texas is thus no stranger to redistricting controversy. We can expect the same this year, as the Texas Legislature sharpens its map-making tools once more. The 2010 census data is expected to come out next month, and we already know that extraordinary population growth will entitle Texas to four new congressional districts—the biggest jump since 1991, when the state picked up three new members of Congress. In both cases, the Texas population grew nearly 20% over the ten-year period preceding the census and, in both cases, the great majority of the growth occurred in suburban areas along the I-35 corridor and in the Rio Grande Valley. In 1991 the Democratically-controlled Legislature, with Democrat Ann Richards in the Governor’s Mansion responded by trying unsuccessfully to draw three new minority-majority districts. It appears likely that this year, with the GOP firmly in control of the Governor’s office and the Legislature, Republicans will try to fashion at least three, and perhaps a fourth, Republican-leaning district. It is also likely that whatever happens this spring in Austin, the ultimate decision will likely rest with the federal judiciary. That, at least, is the common denominator in Texas redistricting history. And, indeed, as The Texas Tribune reported last week, “Redistricting doesn’t start until next week, but the first lawsuit has already been filed.”
Texas Legislative Council, Texas Redistricting
Texas Legislative Council, State and Federal Law Governing Redistricting in Texas (March, 2001)
Photo: Wing-Chi Poon [CC-BY-SA-2.5] via Wikimedia Commons