Every year following the decennial census, the Texas Legislature is responsible for redrawing House, Senate, State Board of Education, judicial, and congressional district lines in proportion to the population. The special session for the redistricting process commenced on September 20 and will determine the district lines for the next 10 years.
How It Works
Dividing Texas into districts of equivocal population size without hampering the right to vote based on race, color, or language group is a messy and contentious procedure. Plans are prohibited from “packing and cracking” districts, which occurs either when racial groups are amassed together into one district to limit their voting power, or disperses racial voting blocs into districts where others will outnumber and overpower them.
However, the redistricting lines must not be made predominately based on race or they will be subject to strict scrutiny by the courts, which requires a compelling governmental interest for the court to allow the racial basis. Most importantly, the redistricting plans must allocate the districts into equivocal population size in a continuous area with communities of shared interest—a directive subject to much interpretation.
Plans for redistricting can arise from either the House or the Senate until both agree on a plan, which then moves to the governor’s desk for approval. If the legislative session is over and Gov. Greg Abbott vetoes the plan, then the Legislative Redistricting Board—comprised of the lieutenant governor, the speaker of the House, attorney general, comptroller, and commissioner of the land office—can adopt their own plan. If the Legislative Redistricting Board also fails to enact a suitable plan, the court will likely create its own.
Past Experiences
Based upon Texas’ most recent redistricting experience, this process could last for a while. Following the 2010 census, Texas redistricting finally reached completion in 2013 after multiple court cases. Due to Texas’ status as a former Confederate state, Texas was required to preclear its redistricting plans with the Federal Court System. The D.C. Court ruled in Texas v. United States (2011) that the Texas plan did not sufficiently demonstrate its lack of discriminatory intent. Texas appealed the D.C. Court ruling to the Supreme Court. However, before it reached the Supreme Court, the Court decided in Shelby County v. Holder (2013) that the preclearance requirements were unconstitutional in and of themselves, thereby mooting the basis of the case against Texas.
Going back further, following the decennial census of 2000, the 2001 legislative session failed to enact a viable redistricting plan and the Legislative Redistricting Board drew the lines basically maintaining the previous lines from the 1990 redistricting map. In 2003, with a new Republican majority in the House, plans were created by the Legislature to redraw the district lines. When Texas Democrats could not stop the plans by voting against the proposal, they instead fled to Oklahoma to prevent a quorum. They returned once the original session expired, and then-Gov. Rick Perry began calling special sessions until the redistricting plan finally passed in the third legislative special session. Issues with the preclearance requirements followed until being resolved in 2006 by the U.S. District Court for the Eastern District of Texas.
These preclearance requirements have affected each redistricting plan of the past four decennial census reapportionments. Previously, the court cases could take anywhere from two to seven years before an accepted redistricting plan was enacted. This 2021 redistricting plan will be the first to avoid preclearance requirements, but it will likely still face lawsuits from angered parties.
Potential Pitfalls
Accusations of gerrymandering will undoubtedly abound as representatives and senators battle it out for plans that will benefit them, without making such designs blatantly apparent. Many politicians often utilize the redistricting process to secure their own district against opposing-party invaders.
Despite the belief held by some Republicans that their majority control of the Legislature will guarantee them favorable lines in the new districts, the lines will undoubtedly come under attack from a variety of parties, which does not guarantee any favorability. Although the Supreme Court removed the preclearance requirements, any plan may still come under legal attack based on the Voting Rights Act of 1965, which attempted to secure the provisions of the 14th and 15th amendments in an enforceable manner.
The Texas Democrats have already fled the state once this legislative cycle in protest of an election overhaul bill, and it’s entirely probable that any redistricting plan will be just as heated an issue. By depriving the Legislature of quorum, laws could not be legally passed and the Texas Democrats brought attention to their side of the issue. The Texas Democrats fled to Oklahoma in a similar move when the 2003 redistricting plan lost the Democrats five seats in the Texas House of Representatives. Thus, there is precedence for another walk-out by the Texas Democrats.
Two Democrat senators have already filed a lawsuit claiming that redistricting cannot be done in a special session and the courts must allocate the districts until the next legislative session in 2023. Their case is currently making its way through the court system but certainly suggests the battle will be heated.
