Off the Kuff Rotating Header Image

FLIP the Texas House

What a Democratic House means for redistricting

Rick Casey makes a point about what a Democratic-majority State House will and won’t be able to do in 2021, in particular with redistricting.

I would put the Democrats’ chances of taking back the State House of Representatives as better than the fulfillment of either of their two other dreams — beating President Donald Trump and U.S. Sen. John Cornyn — though recent polls show Trump and Democrat Joe Biden running even and a large “undecided” cohort in the Senate race.

But what if the Democrats win the Texas House? How much difference would it make?

One of the points I’ve seen made in the national media is that it would prevent the Republicans from gerrymandering legislative and congressional districts in the wake of the 2020 census. But that is wrong.

The Texas Constitution includes a provision, passed in 1951, for what happens if the Senate and House of Representatives can’t agree on lines for legislative seats. The lines are then drawn by the Legislative Redistricting Board which includes the lieutenant governor, the speaker of the House, the attorney general, the comptroller, and the commissioner of the General Land Office. Since the only office in play this November is the speaker, he or she would have little impact on the likes of Republicans Dan Patrick, Ken Paxton, Glenn Hegar, and George P. Bush.

[State Rep. Trey] Martinez Fischer, however, thinks it may be possible for the Legislature to agree on lines.

“Lawmakers are probably not as trusting for a third party to draw their districts,” he said, suggesting that a Democratic House and a Republican Senate might compromise by agreeing to the plans each came up for their own members.

I’m skeptical. I think there would be a strong temptation for Republican leaders to try to take back the House through creative redistricting.

And no matter what plan the Legislature or the redistricting board come up with it will almost certainly end up in federal court. There, the U.S. Supreme Court has made clear, severe gerrymandering for political (as distinct from racial) purposes is perfectly acceptable. Martinez Fischer suggests, however, that a Democratic House could, through witnesses at hearings and floor debate, build a record that would make lawsuits more feasible.

The Constitutional provision Casey references is here. Note, though, that it only applies to the legislature itself, the House and the Senate. It does not apply to the apportionment of Congressional districts. That job, if the 2021 Lege is unable to draw a map that passes both chambers, will fall to the federal courts. That’s exactly what happened in 2001. The fact that a court had drawn the Congressional map in 2001 was cited by Tom DeLay as a justification for his 2003 re-redistricting effort – he insisted that the Congressional map needed to be drawn by the Lege, and if that couldn’t happen in 2001 it could happen in 2003. (The fact that both chambers were now Republican-controlled was a happy coincidence, of course.)

My point here is that while Republicans would have a backstop for legislative redistricting, they would have much less control over Congressional redistricting in this scenario. I don’t know what court would get this assignment – maybe they’ll get a panel with a majority of Trump-appointed judges, who knows – but it’s a roll of the dice. The members themselves would likely prefer to avoid that outcome,. In addition, if Democrats do pick up a boatload of Congressional seats – or, you know, if Joe Biden carries Texas – the argument that the Congressional map should strongly favor Republicans kind of falls apart. Doesn’t mean Republicans couldn’t take a crack at it again in 2023 if they take back the State House in 2022, but that’s a lot of uncertainty. It’s not crazy to think that some kind of compromise, in which each side gets a few concessions in all of the maps, could be reached. No guarantee, of course, and again the Republicans would very much want to maximize their chances of having full control in 2023 to clean up anything they don’t like, but having that lever of control is worth something. Not as much as the national media might portray, I agree, but not nothing. Just having a seat at the table means something.

(Also, too, Democratic control of the House means things like the budget can’t get passed without Democratic input and assent. Redistricting would be done in a special session thanks to the later completion date for the Census, but this is still influence for the Dems. Even if it’s not directly influential on redistricting, it’s a pretty big deal in its own right, especially in a session where revenue is scarce and cuts will be on the table. Anyone who remembers the bloodbath of 2011 knows what that would mean.)

So yes, while taking the State House isn’t the be-all and end-all, it’s a mighty fine goal with lots of ways to pay off. Twitter user Kafka provides an intro to the Democratic candidates in most of the districts of interest, and you can learn more at FLIP The Texas House. If you’re wondering how best to spend your campaign donation dollars this cycle, find a State House candidate or three and toss a few bucks in their direction. This is a great opportunity, and we need to maximize it.