Get Out Your Colored Pencils
The San Antonio court says it will draw its own maps, and sparks begin to fly
On Friday, Sept. 30, in the latest chapter of the perennial partisan Texas fiasco known as "redistricting," the San Antonio federal court currently tasked with adjudicating a broad challenge to the proposed state legislative and congressional maps for next year's elections announced a temporary solution: the court's own interim map in the event the judicial process doesn't move quickly enough to plan next spring's primaries. In the order signed by federal Judge Orlando Garcia on behalf of the three-judge panel (U.S. District Court, Western District of Texas, San Antonio Division), the court noted that since the state of Texas (defending the maps) has appealed directly to the U.S. District Court in D.C. to preclear the maps under the Voting Rights Act (instead of submitting them to the Department of Justice), the San Antonio court must wait for the D.C. court to rule before it can make a decision.
The D.C. court's timetable is uncertain, so the San Antonio court says it will work with the parties on interim maps to be used if no approved maps are available in time for the March primaries. While the panel will continue to review the case, the judges wrote, "the Court has an obligation to the public to consider other available options .... One of those options is the consideration of an interim court-ordered plan." (The previous day, the court had enjoined all Texas jurisdictions against beginning to implement the yet-to-be-approved legislative maps.)
It's not entirely clear how an interim plan might be arrived at, especially since the parties in contention – Democratic state and federal voters and officeholders, the Legislative Black Caucus, the state NAACP, the Mexican American Legislative Caucus, Travis County, and the city of Austin vs. the state of Texas, Gov. Rick Perry, Lt. Gov. David Dewhurst, House Speaker Joe Straus, and Secretary of State Hope Andrade (all in a variety of combinations) – are hardly what you'd call congenial adversaries, and the court notes that the lawyers are still preparing final briefs in the case that heard testimony from Sept. 6 to 16. Nevertheless, the court set an accelerated October schedule (beginning with new briefs on Oct. 7) for the various parties to submit and justify their own proposed interim plans, object to other parties' plans, and instruct the court on the legal precedents for court-ordered plans (of which there have been plenty). The court also noted plaintively, "The plaintiffs are urged but not required to agree among themselves on the plans they submit."
The court set a hearing on the proposals for Nov. 2, adding, "Again, this process is meant to ensure that the Court has a viable alternative in the event it becomes necessary. It does not supplant the ongoing review of the plans passed by the legislature." In theory, that should allow for adequate maps to be approved by the Nov. 12 primary filing deadline.
Earlier in the month, the DOJ had declined to preclear either the proposed state House or U.S. House maps, saying they did not sufficiently protect minority voting rights – indicating the Justice Department will weigh in against those maps in the D.C. litigation. (The DOJ did not address either the state Senate or State Board of Education maps, and the working presumption is that these will eventually be approved.) This is the first post-census redistricting period since the passing of the Voting Rights Act in 1965 with a Democratic administration in charge of the DOJ.
The San Antonio plaintiffs argued that the proposed maps, drawn by the GOP-dominated Legislature, discriminate against minority voters despite the fact that most of the decade's population growth in Texas was Hispanic or African-American. Specifically, they say there should be more "minority-opportunity" congressional districts – where minority voters have the ability to determine their representative – in Central and South Texas and in the Fort Worth area. The state's defense that the maps simply reflect the political realities in Texas was undermined somewhat by its own witness, redistricting expert John Alford of Rice University, who testified that the congressional map has not increased minority representation and that in certain districts (e.g., District 23 in South Texas), the minority vote had in fact been undermined.
Democrats also called attention to the testimony of state House Redistricting Committee counsel Ryan Downton, who told the court House District 41 in South Texas was drawn to the specifications of Rep. Aaron Peña, R-Edinburg, although Peña had denied such a role on the House floor. Peña had switched parties just before the 82nd session, and therefore needs a strongly Republican district to have a chance at re-election.
In another instance, affecting Travis County and Congressional District 35 – currently likely to host a primary contest between Austin incumbent U.S. Rep. Lloyd Doggett and San Antonio state House Rep. Joaquin Castro – Downton testified that District 35 was anchored in San Antonio at the specific request of Castro and San Antonio Rep. Mike Villarreal, both Democrats. "They liked the idea of 35, and having ... a new district, a new Hispanic district in Central Texas," Downton said. "Their concern was that they wanted it to be a Bexar County-based district, and they wanted to make sure that the district was sufficiently weighted towards Bexar County, as opposed to Travis County, and so we made [those] changes."
Asked to comment on Downton's testimony, Castro said, "I think my position and Lloyd's position have been consistent – which is that we believe that both San Antonio and Austin should have their own districts that are Democratic districts." As to whether his role in designing District 35 might undermine the Democratic case against the GOP-drawn map, Castro said: "It would be completely irresponsible for me as a legislator, and particularly as a minority legislator – when Republicans had created only one [minority-opportunity] district – not to speak up about the district. Our constituents don't send us to the Capitol to be silent on major issues."