Why Texas is Texas: A gerrymandering case cuts to the core of the state’s transformation

Civil rights groups descended on a San Antonio courthouse Monday to challenge the constitutionality of the state’s current redistricting maps and accuse Republican legislators of deliberately drawing them to dilute the voting power of minorities.

The trial is only the latest round in a long-running Texas saga over gerrymandering and race.

Voting rights advocates have long accused Texas Republicans of working to undermine the growing political clout of Latino and African American voters by intentionally — and unfairly — cramming them into districts or splitting them up so they are outnumbered. Republican legislators still control roughly two-thirds of State House and Senate and congressional seats.

The legal battles began in 2011, when the Texas Legislature drafted new state and congressional boundaries.

The state had to redistrict because it earned four additional seats in Congress based on the 2010 census, which showed immense population growth. Most of that growth was from a massive influx of Latinos and African Americans.

Texas’ Latino population grew from about 6.7 million to 9.5 million between 2000 and 2010. Non-Latino whites now account for less than 43% of the state population, and Houston is the most racially and ethnically diverse metropolis in the nation.

After civil rights groups filed a lawsuit challenging the redistricting, Texas officials were forced to delay primary races in 2012. For the last few years, the state has been using temporary court-ordered maps made in 2013.

In a pair of rulings this year, a panel of three federal judges — the same ones looking at this latest challenge — found that 2011 maps violated federal law.

In March, the panel ruled in a 2-1 decision that Texas lawmakers drew three U.S. congressional districts to weaken the influence of Hispanic voters, writing in an opinion that legislators demonstrated “a hostility to minority districts, and a willingness to use race for partisan advantage.”

The next month, the judges found that lawmakers redrew state House districts to intentionally dilute the power of minority voters in a string of counties across the state.

Attorneys for the plaintiffs say the 2013 maps should be blocked because they include portions of the 2011 maps that the court found to be in violation of the Voting Rights Act or the 14th Amendment.

But attorneys for the state argue there is no evidence that Texas legislators intentionally discriminated on the basis of race. They also argue legislators cannot be held responsible for any racial discrimination in the 2013 maps as they were ordered by the court.

“The 2013 Legislature could not have drawn the boundaries of districts … predominantly on the basis of race because it did not draw district boundaries at all,” attorneys for the state argued last week in a legal brief. “It adopted the district boundaries implemented by this Court.”

For decades, Texas was on a list of states needing the federal government’s approval to change their election regulations, to ensure they were complying with the 1965 Voting Rights Act aimed at protecting minorities. In 2013, the U.S. Supreme Court lifted the federal oversight requirement.

If the judges rule that the current Texas maps discriminate, legal experts say the federal government may step in again to monitor redistricting.

“The narrow question is: Are these current maps less discriminatory enough that they fix the problem?” said Joseph Fishkin, a law professor at the University of Texas in Austin. “Behind it, there’s also this larger question: If Texas did intentionally discriminate repeatedly against minority voters, should Texas be put back under federal oversight?”

Texas Republicans don’t deny that they carved out districts in 2011 for political advantage. The courts have allowed such gerrymandering, as long as race is not the basis. But that could change as the U.S. Supreme Court recently announced it will take up a Wisconsin case in which plaintiffs accuse Republicans there of improperly discriminating against Democratic voters when they drew their latest maps.

Michael Li, senior redistricting counsel at New York University’s Brennan Center for Justice, said this week’s Texas trial marks a crucial step in determining how to more fairly represent growing Texas’ Latino and African American populations.

“It’s the minority growth rate that gives Texas four additional congressional seats,” Li said. “If you look at the white growth rate over the last decade, Texas wouldn’t have picked up a single congressional seat, yet when it came time to draw the map, there was no net opportunity for Latinos or African Americans in the plan.”

If the panel of judges orders new maps, he said, there are a number of possibilities. Lawmakers could be given a shot at fixing the maps, or the court could redraw the maps before the 2018 election cycle. If either side is dissatisfied with the ruling, it is likely to appeal to the Supreme Court.

If new maps go into effect, they could have far-reaching national implications in the closely contested congressional elections in 2018, with Democrats possibly picking up two to even four congressional seats, Li said.

Either way, Republican strategists take comfort in the knowledge that Democrats are likely to remain the clear minority party in Texas, said Matt Mackowiak, an Austin-based GOP consultant. Democrats have not won a statewide election in Texas since 1994.

“What you’re seeing is Democrats who can’t win at the ballot box using the legal system to get whatever victories they can,” he said. “They’ve had a lot more success with legal challenges than they have winning elections.”

Jarvie is a special correspondent.

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