Updated May 29, 11:51 a.m.:
Redistricting lawyers from all sides — the state and the parties suing the state — told a federal court Wednesday that maps used to elect the Texas Senate in 2012 are acceptable to them and could be adopted without objection.
But differences remain on maps used to elect the state’s congressional delegation and the 150 members of the state House, and the judges asked the lawyers for arguments on how to proceed.
The Legislature is currently considering whether to ratify maps drawn by the three federal judges and used in the 2012 elections. It became clear during Wednesday's hearing that the judges and the lawyers in the case agree that the Legislature probably can't make changes to the maps during the special session — given the charge for that session from Gov. Rick Perry.
The judges didn’t decide anything, though they asked the lawyers several questions about where things stand and how the cases should proceed. Questions include:
- If the Legislature adopts the court’s lines as its own, should the litigation under way in San Antonio stop and leave future arguments to other courts?
- Should objections to the state-drawn maps extend to similar lines in the court-drawn maps?
- Should new information about elections and demographics be used in putting new maps together if it wasn’t available to lawmakers when they first drew maps in 2011?
That’s all open to argument, which is why the court asked the lawyers to file briefs. Lawmakers have said they could be finished in a week to 10 days. If that’s so, the judges could be free to decide their own next move knowing what the Legislature wants to do. The lawyers have until next Wednesday to file their briefs, and the judges said they’ll call another hearing sometime after that.
Meanwhile, the Mexican American Legislative Caucus asked a House committee to bring the governor's office into hearings on redistricting this week to find out why the agenda for the special session is framed to prevent any changes to the redistricting maps used in 2012. In a letter (attached) to Rep. Drew Darby, R-San Angelo, MALC Chairman Trey Martinez Fischer, D-San Antonio, also asked for testimony from the attorney general's office and the state demographer.
The special session on redistricting could be over in as little as a week, unless the governor adds more issues to the agenda.
But that seeming simplicity and ease cloaks a hard-fought legal and political battle over legislative and congressional political districts in Texas being fought in the state Capitol and in federal courthouses from San Antonio to Washington, D.C.
Gov. Rick Perry has asked lawmakers to ratify maps drawn by the federal courts and used in the 2012 elections — without making any changes. His call for a special session set up a busy week for political map-makers and lawyers, with federal court hearings in San Antonio on Wednesday and public hearings by legislative committees on Thursday, Friday and Saturday.
As of now, there is only one issue on the agenda, and lawmakers think they can finish redistricting in seven to 10 days. The governor has the power to add to the list, however, and said Tuesday that he might do that.
“The members are here and if there’s some things that need to be either tweaked or what have you, we’ll address those as we can,” the governor said at a Tuesday bill-signing ceremony. “I think it’s a little bit premature with less than 24 hours since we’ve called this special to be addressing whether we’re going to be adding anything to the call or not.”
The redistricting question before lawmakers is straightforward — endorse court-drawn maps, or don’t — but the struggle over the maps is more than two years old. It delayed the primary elections in 2012 and could do so again unless lawmakers and the courts are quick with their work.
Two years ago, the Legislature approved new political maps for the congressional delegation, the Texas House and the Texas Senate. Several parties — minorities, Democrats and others — sued, saying that the maps didn’t properly represent the state’s population. Those lawsuits were consolidated and assigned to a three-judge panel in San Antonio.
Meanwhile, the state went to Washington to seek federal approval before putting the maps into effect — a requirement of the U.S. Voting Rights Act. Instead of asking the Justice Department for permission, the state exercised its right to instead ask a panel of federal judges.
That second court took so long to do its work that the first court drew interim maps that could be used in the 2012 elections. Even that took time, and the primaries originally scheduled for March instead took place in May, using those court-drawn maps.
Both lines of litigation are still open. The D.C. court found evidence of intentional discrimination in the Legislature’s maps and said they shouldn’t be used without revisions; the state is appealing that decision. The San Antonio court is awaiting that decision — and for a U.S. Supreme Court decision in an Alabama case challenging the Voting Rights Act. That case, out of Shelby County, Ala., seeks to strike the part of the Voting Rights Act that requires states with histories of racial discrimination — like Texas and Alabama — to get federal permission before changing their election laws.
Attorney General Greg Abbott wants lawmakers to adopt the maps that were drawn by the judges in San Antonio and used in the 2012 elections. One incentive is that doing so would reduce uncertainty about the legal battle — even though it might continue, using different maps — and reduce the chances of another set of delayed elections in 2014.
“These maps already have the approval from the federal judges overseeing this litigation,” Abbott wrote in a March letter to House Speaker Joe Straus. “Enacting the interim plans into law would confirm the Legislature’s intent for a redistricting plan that fully comports with the law, and will insulate the state’s redistricting plans from further legal challenge.”
Democrats, who believe they have little to lose in court and as many as five to seven seats to gain in the House, don’t want to ratify the court maps.
“It’s reasonable to conclude that blanket adoption of the interim maps, which maintain a lot of the elements of the legislatively enacted maps, which were found to be flawed, would result in retaining a lot of the problematic districts,” state Rep. Chris Turner, D-Grand Prairie, said Tuesday on the House floor. “It’s not a good idea for us to go and rubber-stamp these maps that were meant to be interim, not permanent.”
When it put the maps in place, the court said district lines were based on “preliminary conclusions that may be revised upon full analysis.”
Republicans see a way to lock in the current maps for at least one more election cycle. The state’s lawyers say both sides would gain some certainty, and point out that the legislators now in office were elected using the maps they’re being asked to ratify.
During the legislative session that ended Monday, the Senate appeared willing to go along with Abbott’s advice, but the House — governed this year with a coalition of Republicans and Democrats — balked. With other competing issues out of the way, the supporters of Abbott’s idea think they have a good shot at approval.
That doesn’t mean the court-drawn maps are without any legal flaws. Lawyers for minority and partisan groups challenging the Legislature’s plans say that some of the racial discrimination found by the courts in those plans also exist in the plans used in the 2012 elections. In an April letter to state Rep. Yvonne Davis of Dallas, who heads the House Democratic Caucus, Abbott left the state an opening without agreeing with that position.
“I am not in a position to say that the interim maps drawn by the three federal judges will be free from legal challenge by the state,” he wrote. “I do believe, however, that those judges did not craft interim maps that include racial discrimination.”
The federal judges in San Antonio have asked the lawyers on all sides to weigh in on the status of things on Wednesday and to help the judges get things in line for the 2014 elections. In their latest orders, the judges say all of the parties have apparently signed off on the court’s interim maps for state Senate elections.
The San Antonio judges have also said that if they don’t have a ruling in hand from the Washington court on legislative maps, then they would have to put their own interim maps — new ones or the ones used in 2012 — in place for the 2014 elections.
On Thursday, state lawmakers will hold the first of three days of hearings on the interim maps drawn by the judges and used in 2012. They’re not being asked to draw new maps, but to sign off on the maps the judges drew. That would force opponents to argue that the plans drawn by the judges themselves should be declared illegal.
The Senate named a new redistricting committee this week, headed by Sen. Kel Seliger, R-Amarillo, who led the mapping efforts in 2011. In the House, a standing committee on redistricting chaired by Rep. Drew Darby, R-San Angelo, was expanded, he said, to get greater geographic diversity. The chairmen have filed four redistricting bills each, and after this week’s hearings, they hope to have their bills in front of the full House and Senate next week.
“The phrase ‘relatively simple’ is not in my vocabulary,” Darby said. “I have found that the legislative process is fraught with landmines and pitfalls. While something may appear to be less complicated, it’s never simple.
“We intend to move the House into this process and out of it as quickly as possible,” he said.
Becca Aaronson contributed to this story.
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- MALC Letter to Darby on Redistricting, 5/29/13 (106.1 KB) DOWNLOAD