Over the past several years, federal courts have scolded Texas for its political boundaries, ruling that lawmakers intentionally diluted the voting strength of voters of color when they redrew Texas’ congressional and state House maps.
The U.S. Supreme Court might have the final say. In April, the high court’s justices heard oral arguments in Texas’ redistricting case. Their final decision, expected to come this month, could lay the foundation for what the state’s political maps will look like through the end of the decade. A ruling on the current maps could also determine whether Texas will be required to get federal approval every time it draws new districts — a move that would safeguard voters of color from alleged discrimination and yield new boundaries that more closely reflect the size of the state’s electorate that’s made up of voters of color.
But as the high court weighs a decision on the 11 Texas political districts in question, a coalition of voting and civil rights groups is looking to what they see as a solution to the state’s alleged discriminatory redistricting: establishing an independent commission in which citizens, rather than lawmakers, draw the state’s political maps.
“When the people who are going to be running the districts are drawing the maps, it’s really about amassing power for themselves and for their political party,” said Anthony Gutierrez, the executive director of Common Cause Texas, a nonpartisan organization that focuses on voting rights issues, civic engagement and redistricting reform.
“When other people who are not legislators or candidates for office are more involved with drawing the maps, it’s more about how do we best construct districts that can represent our communities,” he added.
The current process for creating the state’s political maps looks like this: Texas redraws the political lines for its congressional and legislative districts every 10 years following the U.S. census. The process for making the maps, however, is mired in accusations that the party in power draws maps to benefit its base. Those accusations are boosting calls for reforms — including long shot proposals to take the map-making power away from lawmakers and hand it over to an independent commission.
Independent commissions can be structured in various ways. Under the proposal Gutierrez favors — a plan also touted by the American Civil Liberties Union, the Texas League of Women Voters and the Texas Civil Rights Project —Texans serving on the commission would be selected through an application process. (Some other states with independent commissions have state officials or political parties choose the members.)
Gutierrez added that the commission members would be demographically, racially and politically diverse and would have to have some sort of “expertise” in order to join.
As proposed, the independent citizen commission would work like this:
Fourteen members would serve on the commission: five who’ve exclusively voted in the Republican primaries, five who’ve exclusively voted in Democratic primaries and four who’ve not voted in either.
The commissioners would draw the maps, which would have to comply with the federal guidelines outlined under the Voting Rights Act (which blocks district lines that deny minority voters equal representation opportunities, among other things), and a vote of at least nine members would be required to approve the maps and submit them to the Legislature for final approval.
Lawmakers would be allowed to tweak the map boundaries but would be prohibited from making large scale changes.
According to the National Conference of State Legislatures, states including Arizona and California have created independent commissions, while other states have banned partisan gerrymandering in their state constitutions.
But similar proposals have never been enacted in Texas. And some experts say it’s unlikely they ever will.
“Texas doesn’t have a process where something like this could be enacted over the wishes of the Legislature. This seems like it would not go anywhere,” said Rick Hasen, a professor and election law expert at the University of California, Irvine’s law school.
Another reason an independent commission is unlikely is because its creation would require current lawmakers to give up some of their power. And the majority party in the Legislature is the same party that’s favored by the current maps.
“The Texas Legislature has been engaged in partisan gerrymandering for a very long time — both Republicans and Democrats,” Hasen said. “It’s just hard to see what the incentive would be to give up the power they have. Generally, legislators don’t want to do that.”
Implementing an independent citizens commission would require putting a constitutional amendment before Texas voters — a move that needs the support of more than two-thirds of both chambers of the Legislature.
The latest attempt to amend the state’s current political maps happened during last year’s legislative session when state Rep. Victoria Neave, D-Dallas, unsuccessfully filed a joint resolution to create an independent commission.
“We wanted to put the redistricting process into the hands of the people,” Neave said, adding that she plans to refile her measure during next year’s legislative session. “We’ve had courts that’ve held that there’s been intentional discrimination against Latino and African-American voters, so we just want to make sure that the process is fair and equitable.”
But top Texas officials, including Texas Attorney General Ken Paxton, have vehemently denied that lawmakers illegally used race to draw the boundaries, saying they were motivated only by partisanship.
“We firmly believe that the maps Texas used in the last three election cycles are lawful, and we will aggressively defend the maps on all fronts,” Paxton said in a statement last year.
Experts say there are drawbacks to independent commissions, however. Though the rules for how members are selected varies by state, it’s hard to ensure commissioners are politically neutral, they say. It’s also difficult to determine if members on the commission have enough expertise on the state’s political boundaries to implement meaningful change.
“Even ‘neutral’ commissioners will have political leanings, but we can be certain that they are much more ‘neutral’ than state legislators,” said University of Texas at Austin political science professor Sean Theriault.
There are other reforms short of a commission that could make redistricting more fair, including requiring a supermajority of the Legislature to approve Texas’ political maps, said Michael Li, a redistricting expert with the Brennan Center for Justice at New York University School of Law.
Or, Li said, the reforms could even go a step further and require a supermajority of the Legislature plus support from a certain percentage of the minority party. The latest state to take such actions is Ohio, where voters overwhelmingly approved an amendment that will require bipartisan input and approval for federal congressional maps.
“The problem of extreme gerrymandering exists almost exclusively when one party has control of all of the levers of power,” Li wrote in The Texas Tribune’s Facebook group, This is Your Texas. “If you break that up by requiring a supermajority, you go a long way to creating fairer maps.”
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