A good update, and a reminder that not all of the action is in federal court.
In two cases heard [December 14 and 15], a group of mostly Democratic, Hispanic lawmakers from both chambers challenged the legality of when and how Republicans drew the boundaries.
“All we’re asking is for Republicans, who claim to be constitutionalists, to start acting like it, and follow the plain meaning and reading of the Constitution,” said Roland Gutierrez, one of two Democratic state senators who are suing Texas.
Focusing on the timing are Gutierrez and Sen. Sarah Eckhardt, who sued to block the Legislature from redistricting in a special session this year. Also at issue are rules for keeping counties intact when drawing Texas House districts.
Similar to a suit they filed in federal court before redrawing began, the senators’ attorneys argued the Texas Constitution requires that redistricting be done in a regular session that won’t happen until 2023.
That makes the newly drawn state House and state Senate plans invalid, argued the legal team for Gutierrez and Eckhardt, of San Antonio and Austin, respectively.
The senators’ lawyers pointed to a provision in the state Constitution that requires the redistricting process to start in the first regular session after the decennial Census has been published, asking the court to block the new plans from being used.
State lawyers argued the provision does not prohibit apportionment at other times, and warned that blocking the map will disrupt the 2022 election process that is already in motion.
“The Legislature … is perfectly free to redistrict whenever it wants,” Will Thompson, the attorney general’s deputy chief for special litigation, said at the Dec. 15 hearing in district court in Travis County.
The senators’ legal team also argued the new state House map violated the “county line rule” of the Texas Constitution, which requires that counties with sufficient population be kept intact in drawing Texas House districts.
The second challenge, mounted by the Mexican American Legislative Caucus in the Texas House, made a similar case that the rule was broken, arguing it was designed to ensure people have local representation.
As lawmakers this fall debated the new House lines late into the night, they narrowly adopted a major change in South Texas. House District 37 was redrawn from a seat President Joe Biden won by 17 percentage points, to a seat the president won by only two points over former President Donald Trump in the 2020 election.
That amendment, developed by Kingsville Republican Rep. J.M. Lozano, was denounced by some Valley lawmakers. State Rep. Eddie Lucio III, D-Brownsville, called the change a “disingenuous, last-minute attempt to do a grab.”
The plaintiffs’ legal team argued the county line rule requires that two districts be wholly contained within Cameron County. Yet Lozano’s tweaks give Cameron County just one wholly contained district, with two that connect to adjoining counties.
The state’s lawyers argued the new boundaries do not dilute votes in Cameron County, and that Cameron got the number of districts it was constitutionally entitled to. The plaintiffs’ attorney rejected that interpretation of the rules.
“There is no doubt that to whatever extent Cameron County voters are a cohesive group … they get to elect the candidates of their choice,” said Thompson, one of the state’s lawyers.
District 37 Democratic candidate Ruben Cortez Jr. joined the senators’ suit, along with political organization Tejano Democrats. The new version of the district was joined with adjacent Willacy County.
“This Republican redistricting scheme is robbing the voice of Cameron County voters,” Cortez, also a member of the Texas State Board of Education, said in a news release.
The caucus’ complaint asked the court to block the Texas House map from being used in upcoming elections and allow for the creation of alternative boundaries.
Both sides discussed a full trial beginning Jan. 10.
It’s unclear, if the judges rule in favor of the plaintiffs on the county line rule, whether they would delay Texas House primary elections just for South Texas, or the entire state. The plaintiffs’ legal team asked the court to delay the primary to May 24.
Thompson, the state lawyer, said he expects the 2023 Legislature to have to revisit the maps.
The Gutierrez/Eckhardt lawsuit was originally filed in federal court, but at a hearing in October it was agreed that the plaintiffs would first pursue the matter in state court. The state lawsuit was filed on November 22, judging from the stamp on the document. The lawsuit over HD37 and Cameron County was one of two lawsuits filed by MALC, with the other being a broader federal lawsuit. I was not aware until this story that they had been combined, as the federal lawsuits (with the exception of the federal version of the Gutierrez/Eckhardt lawsuit) have been.
The cases are being heard by an interesting three-judge panel: Karin Crump, a Democrat and district court judge in Travis County, who is presiding; Ken Wise, a Republican was was re-elected to the 14th Court of Appeals in 2020; and Emily Miskel, a Republican district court judge from Collin County who is running for the 5th Court of Appeals in 2022. I assume this is the work of the Texas Multidistrict Litigation Panel, though that name is not mentioned in the story. Funny how once you become aware of something new you begin to see it everywhere.
As for the cases, with the standard I Am Not A Lawyer proviso, both of them seem pretty straightforward. Either the Lege is only allowed to embark on the decennial redistricting process in a regular session that follows the Census or it’s not, and either the county line rule means that a county with sufficient population to have more than one State House district in it has only one partial district in it, with the other(s) being fully within that county. Looking at the district viewer, I don’t see any other example of a county that has one complete district and more than one partial districts in it. There are no such examples in the current map, either – Cameron has all of HDs 37 and 38 and part of 35. It seems likely to me that previous legislatures didn’t think this was something they could do. And as for whether Cameron County voters get to elect the candidate of their choice, that’s nice and all but it’s not the question that was asked, nor is it relevant to the county line rule.
As for the claim that the Lege is free to redistrict whenever it wants, then it could in theory redraw new lines after every election. (The 2003 DeLay re-redistricting was only for Congress, which is outside the scope of the Gutierrez/Eckhardt lawsuit. That same claim was made about “mid-decade” Congressional redistricting, and I don’t believe there was ever a federal ruling on that question.) Surely there are some limits on what the majority party can do.
The weakness of the state’s arguments suggests to me the possibility the plaintiffs could prevail, but we are getting way ahead of ourselves. I do think the state can reasonably claim it wasn’t their fault that the Census data was late, and that it’s less disruptive to redistrict in a special session so new maps can be in place for the intended election than to wait an entire cycle. The counter to that would be that this is what the Legislative Redistricting Board is for, though here I would say it’s not clear to me that the outcome would be any more favorable to the plaintiffs unless the LRB is restricted to just tweaking districts to equalize population. In other words, can the LRB draw whole new maps, in which case I’d expect them to come up with something exactly like what was adopted by the Lege, or must they use the existing maps and make only the minimal changes necessary to fix population imbalances? The Gutierrez/Eckhardt plaintiffs might “win” but not achieve anything, depending on how the court views that question. Someone with real legal experience should probably step in at this point and stop me from digging this hole any deeper.
Anyway. We might at least get an initial answer to these questions before voting begins, which would be nice. We might also get a split primary for at least part of the state, which is more than a little chaotic. Isn’t this fun?