"Analysis: It doesn’t matter what the Supreme Court says. Texas Republicans already won redistricting." was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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Political maps have 10-year lives, at best, and the current Texas redistricting case is already seven years old and counting. Even a definitive ruling later this year against the Republican-drawn maps for congressional and legislative seats would be academic, likely affecting only one of the five major elections conducted in this redistricting cycle.
That’s not to say the current case — argued Tuesday in the U.S. Supreme Court — is unimportant. It could change the case law in some way, maybe even providing some clarity in future redistricting cases for obviously overwhelmed federal judges all over the country.
Redistricting is complicated. The courts would rather keep their hands clean than mess with political decisions made by elected officials. But elected officials continually cheat, trying to cut corners and stretch legal envelopes with clever and increasingly sophisticated technical tricks, the better to draw maps that favor their friends and hobble their enemies.
New maps are triggered by new census counts. The order of things is uncomplicated: Count the people, reapportion the seats in Congress among the states according to population, then let the states draw new redistricting maps with equal numbers of people in them.
You know the rest of the story. Lawmakers follow the same rules as Labrador retrievers. Leave a roast on the counter for a minute and even a well-trained dog will grab it when the opportunity arises. It’s a dog, and that’s what dogs do. And so it is with lawmakers given a chance to draw maps that protect them and their allies and that punish their political foes. They’re politicians, and that’s what politicians do.
The courts are supposed to make sure politicians follow the rules, as best they can. That’s complicated — so much so that the Texas case remains unsettled seven years after it started. We’re in the fourth election cycle since the 2010 census, with only one left after this. It’s not impossible to order new districts for some of the 2018 elections, but it’s getting awfully late for that; it seems unlikely the courts would move that quickly, or that forcefully.
Whether they do or don’t misses another point: The courts' pace has allowed three election cycles using contested maps. And a relatively recent ruling from the Supreme Court gave the state’s mapmakers — Republicans, at the moment — another advantage that used to belong to the people questioning a map.
Under the preclearance provisions of the Voting Rights Act, new Texas maps could only take effect with the legal blessings of either the courts or the U.S. Department of Justice. After the Supreme Court’s Shelby County v. Holder decision in 2012, the state’s maps take effect until and unless the courts redraw them or force the state to do so.
That means the state’s maps, with some court changes, have remained in place while the challenges slowly moved through the legal system.
If the maps are ultimately found to be fair and constitutional — that state lawmakers did the right thing — that means Republicans won the day. They won most of the elections, too, in part by drawing maps that left only one swing seat among 36 in the state’s U.S. House delegation, only one swing seat in the 31-member state Senate, and only about 10 percent of the seats in the 150-member Texas House within reasonable reach of either major political party’s candidates.
If, however, the maps are ultimately found to be unfair and unconstitutional, the Republicans will still have won, because the courts are so confoundingly slow. It’s the old platitude about delayed justice, put to political advantage: Losing slowly, in this case, would mean the mapmakers got to hold at least three elections and rule for six to eight years before being ordered to stop.
That’s a kind of a win, right? Go for a five-election streak, a whole decade, and settle for four? It’s possible the court will put Texas back under preclearance, which would be a big loss for the state’s lawyers and a big win for the other side. That and other significant legal questions for future redistricting efforts are at stake in the case now pending with the court.
No matter how the court rules, we already know this decade’s winner.