Messin’ with Texas: The Legal Wrangle over Redistricting
For the past 30 years, redistricting in Texas has provided great theater. As the state has gone from one-party Democratic to a Republican stronghold to renewed stirrings of bipartisan competition, the controlling party has exploited the decennial line drawing to lock in gains. And just as certainly, the courts have provided refuge for those on the outs.
The Supreme Court has recognized the problem on a national scale but has been unable to see a solution. The justices have failed to find an easy definition of what is fair, what level of manipulation is permissible, how much greed is tolerable, how many districts should be assigned to this group or that group.
Unfortunately our democracy has done little to bring order to the self-serving spectacle of political insiders trying to cement their advantage, the voters be damned. Fifty years ago the Supreme Court decreed that it would strike down unequal population in districts, but other than translating that into a one-person, one-vote requirement, the Court has done little else. We are told that gerrymandering offends the Constitution, but that nothing can be done about it.
So, following the logic of going where the getting might be good, litigants have learned that partisan grievances only get traction if adorned in the inflammatory garb of racial claims.
Of course, race and politics are difficult to separate. The polarization of the parties nationally yields a heavily minority Democratic party and an overwhelmingly white Republican party. The richest partisan gains follow the lines of race and ethnicity.
Which brings us to the current Texas showdown. Since the last redistricting a decade ago, the state gained nearly four million residents, mostly the result of surges in the minority population. In turn, Texas received an additional four congressional districts. As a general rule, states more easily distribute population gains than losses. But with a divided Congress, every seat has become part of the national battleground. With Republicans in control of the Texas Legislature, the state was carved up to create four districts that they would likely control. So, off to litigation we go, where the story becomes inordinately complicated.
Texas is a “covered jurisdiction” under Section 5 of the Voting Rights Act which means that it cannot put its plan into effect unless it is “precleared” by either the Department of Justice or a special three-judge court in Washington, D.C. This year, for the first time since the VRA was passed in 1965, the Justice Department is headed by Democrats at the time of redistricting. Texas decided to try the D.C. court instead, and the state is now about to go to trial to prove that the new plan is not discriminatory in either its effect or its intent.
Meanwhile, suit was also filed in Texas before a special three-judge federal court claiming that the new plan could not be implemented before it was precleared, that the pre-2010 Census plan on which the lines were based could no longer be used because it failed to account properly for the population of Texas, and that the new plan was in fact discriminatory. That case, too, was scheduled for a quick trial.