7.7: Issues and Controversies - Redistricting and Representation
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As discussed earlier in the chapter, Texas’s thirty-six representatives for U.S. Congress, thirty- one state senators, and 150 state representatives are elected from geographic districts that are roughly equivalent in population. The United States Constitution (Article 1, Section 2) calls for a new calculation of the number of congressional districts in each state every ten years following the U.S. Census, a process called decennial reapportionment. At that time, the 435 seats in the U.S. Congress are reapportioned among the fifty states. Apportionment is the process by which the U.S. Congress determines how many congress people will represent each state. The boundaries of the congressional districts are then redrawn by state legislatures in accordance with state and federal law such that they are roughly equivalent in population, a process known as redistricting. Texas is projected to gain three seats in the U.S. House after the decennial reapportionment of the 2020 Census.27 t wasn’t always so. Previously, election districts in Texas often varied widely in population. Counties elected their representatives, and rural politicians therefore dominated the legislature. These political strongholds were reluctant to redraw boundaries that diluted their political power. But as the economy shifted away from agriculture toward industry, so, too, did populations. People moved to the cities for jobs and urban populations grew dramatically. Voters in those burgeoning cities now felt underrepresented. In the U.S. Supreme Court case of Reynolds v. Sims (1964), Chief Justice Earl Warren ruled "legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests."28 The one person, one vote standard established in Reynolds v. Sims means that districts have to be roughly equivalent in population, which is how Representative Morales can represent a district bigger than some countries and Representative Wu can represent so small a geographic area that it doesn’t even show up on the district map. The legislature is now dominated by those elected from thickly populated urban and suburban areas. Legislative districts today cannot deviate by more than ten percent from the least populous to the most populous district.
The Texas Constitution requires the legislature to redistrict Texas House and Senate seats during its first regular session following publication of each U.S. Census (Article 3, Section 28). Interestingly, the legislature may not have an opportunity to draw districts for 2022 elections at all, since the state constitution specifies that the legislature must draw districts “at its first regular session after the publication of each United States decennial census” (emphasis added).. Following the 2020 Census, Texas legislators face an interesting challenge. Delayed by the COVID pandemic, the U.S Census Bureau is not expected to have data available until September 30, giving the state a tight window during which they must draw new districts so that candidates can file for office by the December 13 filing deadline. While the Texas Constitution requires redistricting during the first regular session following publication of the census data, what happens if the census data isn’t published before the regular session adjourns? If the legislature cannot agree on redistricting maps, the Texas Constitution transfers that responsibility to the Legislative Redistricting Board (LRB). The LRB is a five-member panel made of the lieutenant governor, speaker of the house, attorney general, comptroller and land commissioner—all of whom are Republicans. Will the LRB end up with jurisdiction for the 2021 redistricting process? This is a question that will likely be settled in court.
Partisan Redistricting and Gerrymandering
Although the Texas Constitution seems to prohibit calling a special session to address redistricting, if congressional districts are not enacted during the regular session and the LRB is not invoked, the governor may do just that. Governor Rick Perry called three consecutive special sessions to address congressional redistricting in 2003 because Republicans had just won the majority in both the Texas House of Representatives and the Texas Senate—the first time the Republicans had won the House in 130 years. Instead of redistricting after the ten-year Census, as was the norm, a controversial plan was undertaken mid-decade specifically to give Republicans an advantage in winning races for the U.S. Congress. The Killer Ds, as the group of Texas House Democrats was dubbed, fled to a secret hideout in Oklahoma to avoid voting and thus prevent the two-thirds vote necessary to pass the new map. Another group of Democrats, this time from the Senate, fled to New Mexico. The Republican House Speaker Tom Craddick called for their arrest, but Texas Rangers said they had no jurisdiction across state lines, and the FBI pled the same. Craddick placed the legislature under lockdown so no one else could leave before the vote, and finally, Homeland Security—at the request of the Republican Speaker of the U.S. House, Texan Tom Delay—located the Killer Ds.29 Ultimately, the Killer Ds’ effort failed—they returned—and the new map passed.
Gerrymandering is named for Massachusetts governor Elbridge Gerry, who famously signed a bill creating a wildly shaped district that a local cartoonist thought resembled a salamander. Gerrymandering is now used to refer to any attempt to draw oddly shaped districts to favor a specific person or group. Spectrum Local News in San Antonio describes gerrymandering this way: “Gerrymandering refers to the practice of redrawing voting district boundaries with the intent to favor one party over the other, discriminate against minorities, or, in some cases, maintain the status quo.30 Gerrymandering has been used in state legislature, including Texas, to favor Democrats, Republicans, rural Texans and members of racial groups. Currently, the Texas legislature continues to be dominated by Republicans, so the Republican Party has the upper hand in redrawing district maps and using these maps simply to protect their colleagues—for example, to avoid “pairing” incumbent legislators into the same new district, forcing them to run against each other in the next election.
Electoral Representation
The impact of partisan gerrymandering can be seen when comparing statewide election results to the partisan balance of Republicans and Democrats in the legislature. In the 2020 election, Texas voters preferred the Republican candidate, Donald Trump, by a margin of 52.1 percent, giving Democrat Joe Biden 46.5 percent of the vote. While that result is about two specific candidates, many would assume that a similar margin of Texans would vote for a state legislator of the same political party as their presidential candidate choice. Yet, with the drawing of districts by a Republican-majority legislature to favor Republican candidates, Republican margins in the Senate (fifty-eight percent) and House (fifty-five percent) are slightly larger.
An analysis from the Associated Press indicates that partisan gerrymandering has had as big if not a bigger impact on the state House and Senate than on the U.S. Congress.31 F Since the Perry- Delay redistricting of 2003, the boundaries of Texas’s congressional districts have largely remained unchanged and had the desired outcome of their Republican cartographers. The majority of representatives sent to the U.S. Congress from Texas in 2004 were Republicans, something that had not occurred since Texas reentered the Union and Union soldiers withdrew from the state after the Civil War. After the 2010 redistricting that trimmed Democratic strongholds but left Republicans intact, a Republican landslide added twenty-four seats to become a supermajority.32
Since 2008, backlash against the administration of Barack Obama has brought a strongly ideological conservative shift as well—a shift best represented by the significant influence of the Freedom Caucus today—and this has influenced the political climate of Texas. But since 2003— but even before this turn the composition of the legislature favored White Republican men. This continues to be true despite countervailing demographic trends, particularly from the growth of the Latino population. Texas’s current status is one of only six minority-majority states, with just 41.4 percent of the population as non-Hispanic White.33 While cultural and economic considerations are at play, including low voter turnout, the impact of redistricting on electoral representation cannot be counted out.
This history of partisan gerrymandering in Texas and its repercussions illustrates some of the issues and controversies that have emerged around redistricting. Two main points cannot change: the federal government stipulates that districts must have roughly equal populations (Reynolds v. Sims) and also that they must not discriminate on the basis of race or ethnicity (Voting Rights Act of 1965). But lawsuits to the contrary (Abbott v. Perez, 2017; Gill v. Whitford, 2017; Benisek v. Lamone, 2019; and others), and notwithstanding Supreme Court Justice Antonin Scalia’s sentiments in which he described partisan gerrymandering as “inconsistent with democratic principles,”34 the U.S. Supreme Court has not weighed in to oppose the practice.
Texas’s gain of two congressional seats after the 2020 Census will bring the state’s congressional delegation from thirty-six to thirty-eight, and give Texas forty electoral votes in the next presidential election. If drawing districts in a special session is not possible with the Texas Constitution, but holding an election in districts drawn with outdated census data over a decade ago is likely to violate federal law, will the all-Republican Legislative Redistricting Board be the answer? This begs the question: should politicians draw their own districts at all? Some states, like Arizona, have created a redistricting commission to attempt to remove partisan politics from the redistricting process. Since members of the commission have to be appointed, and there are always partisan pressures on appointment, the commission model may not be a panacea.
Meanwhile, potential candidates preparing to run for the Texas House and Senate, and for Congress in 2022, may not know what district they are seeking until long after a campaign would normally be underway.
27. Earl Warren, as quoted in “Reynolds v. Sims ‘Legislators Represent People, Not Trees,’” Law Library-American Law and Legal Information, law.jrank.org, https://law.jrank.org/pages/25431/Re...resent-People- Trees.html.
28. Michael King, “Naked City: Killer D’s: Investigate This!, “ Austin Chronicle, June 20, 2003, https://www.austinchronicle.com/news...-06-20/164603/.
29. Eric Griffey, “A Brief History of Texas Gerrymandering, Spectrum News 1, Oct. 14, 2020, “https://spectrumlocalnews.com/tx/san...errymandering-.
30. Will Wissert, “Analysis: Texas gave House GOP biggest gerrymandering bump,” Associated Press, June 25, 2017, https://apnews.com/article/bfbf76adb...9096ca7ab4cf83.
31. Alexa Ura, “How a decade of voting rights fights led to fewer redistricting safeguards for people of color,” Texas Tribune, Sept. 10, 2019, https://www.texastribune.org/2019/09...-voters-color/
32. United States Census, 2018, “QuickFacts Texas, Population Estimates,” July 1, 2019, https://www.census.gov/quickfacts/TX.
33. Matt Ford, “How Texas Republicans Got Away with a Racially Discriminatory Electoral Map” New Republic, June 25, 2018, newrepublic.com/article/149357/texas-republicans-got-away-racially-discriminatory-electoral-map; Jamal Greene, Judging Partisan Gerrymanders Under the Elections Clause, 114 YALE L. J. 1021 (2005), https://scholarship.law.columbia.edu...holarship/260/.
34. Exit poll results and analysis from Texas,” Washington Post, Nov. 9, 2020, https://www.washingtonpost.com/elect...as-exit-polls/.