Legislative Redistricting Proceeds Under a Cloud

Attorney General Greg Abbott

In what looks increasingly like a split legal decision, a federal court in San Antonio has ruled that the 2014 party primaries will use the maps adopted by the Texas legislature during the 2013 session. However, the court's ruling also ensures that the lawsuits against those same maps will continue.

In a Sept. 6 ruling, U.S. District Circuit Judges Jerry Smith, Orlando Garcia, and Xavier Rodriguez cited prior case precedent that they must defer to the Legislature on maps until there has been a ruling of racially motivated gerrymandering. Simultaneously, however, the judges allowed the plaintiffs – who originally filed suit against the 2011 redistricting – to modify their suits to include the 2013 maps. They also denied a request from the state to dismiss any claims relating to the 2011 maps as moot, noting that "the 2013 plans are heavily derived from the 2011 plans."

The San Antonio ruling has allowed both sides in the suit to quickly declare partial victory. In a statement from the attorney gen­er­al's office, spokeswoman Lauren Bean said, "Texas has prevailed each time the redistricting litigation has reached the U.S. Supreme Court and remains confident that the Legis­lature's maps will be vindicated." However, Texas Democratic Party chair Gilberto Hino­josa took direct aim at Bean's boss, the GOP's presumptive front-runner for governor. He said, "Here we are halfway through 2013, and Greg Abbott has been unable to finalize maps that Federal Courts are willing to say aren't discriminatory."

By securing the district lines for now, the judges ensured that – barring an early ruling or extraordinary legal circumstances – the primaries will take place as scheduled on March 4. As the litigation continued, there had been real concerns that Texas would have to move the primary date in 2014, just as it had to in 2012. This could have had serious electoral and campaigning repercussions; it's the political consensus that the only way Ted Cruz beat Lt. Gov. David Dew­hurst for Kay Bailey Hutchison's vacant U.S. Senate seat was that the extended primary gave Cruz time to build momentum.

This case has now dragged on for so long that even the legal ground on which it stands has shifted dramatically. In June, the U.S. Supreme Court upheld Section 5 of the Voting Rights Act, requiring federal preclearance of electoral maps in jurisdictions with a proven history of racial discrimination in redistricting. However, they struck down Section 4B, which defined which states required preclearance (see "SCOTUS Guts Voting Rights Act," June 25.) With no new definitions imminent from Congress, U.S. Attor­ney General Eric Holder is asking the courts to include Texas under Section 5.

The San Antonio court also issued two supplementary orders. Firstly, Garcia rejected a request by the Texas Latino Redistricting Task Force to include testimony from the January 2012 hearings on the case in the District of Columbia. Citing his concerns that his court would not be able to assess the credibility of witnesses, he said that bringing them back to San Antonio "will give both sides another opportunity for cross-examination." However, in a separate order, he did allow the plaintiffs to add documents provided by the defense after the initial 2011 trial. At the time, the court expressed frustration about how slowly the state was handing over evidence during discovery. Soundly rejecting Texas' argument that it did not know what was in its own documents, he wrote, "Defend­ants had ample opportunity to respond to the evidence, by cross-examination or otherwise, during the D.C. trial and they will have yet another opportunity to do so in this case."