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Tidwell: Presidential election and Supreme Court picks will ultimately end gridlock – one way or the other

Editor’s note: this analysis, written by Russ Tidwell, has far-reaching national implications, given pending redistricting litigation in Texas and elsewhere. Tidwell is well-qualified to speak on this – he was the Political Director of the Texas Trial Lawyers Association for 26 years, and is now with the Texas Association of Consumer Lawyers. He has been in the thick of every Texas redistricting battle since 1981.

By Russ Tidwell

The Scalia Supreme Court vacancy brings into focus the stakes in the Presidential election – the path to end Washington gridlock, which is ultimately rooted in the way districts are drawn.

While President Obama was winning a majority of the vote in the 2012 election, Democratic candidates, not Republicans, were winning a majority of the total vote for Congress. Republicans retained solid control of the U.S. House, however, because of carefully gerrymandered districts that leave Republican officeholders beholden only to angry voters who dominate the Republican Primaries – And neither those voters nor their Congressmen want to see any compromise with the hated Obama.

Only the U.S. Supreme Court can fix this.

Earlier: On SCOTUS vacancy, Republicans are probably screwed

Republicans in the U.S. Senate will probably deny confirmation to any Obama nominee, hoping for a Republican Presidential victory in November. But more than just the Scalia seat is on the line.  The next Presidential term will see an additional three Octogenarians still on the court.  The average age of departure from the court is 78.  When the new Presidential term begins, Anthony Kennedy will be 80, Stephen Breyer 78 and Ruth Bader Ginsberg 83.

This unusual confluence of age will allow the next President to shape the future of voting rights, for better or worse, for generations.

Let’s explore how we got in to this national paralysis of gridlock and how we can get out.

We need to understand racially polarized voting patterns.  After Democratic President Lyndon Johnson signed the 1964 Civil Rights Act, Anglo voters in the South rather rapidly transformed from Yellow Dog Democrats (previously the segregationist party in the South) to solidly Republican in Federal elections.

The Republican “Southern Strategy” sped this along, with campaigns enflaming emotions over busing, affirmative action, fears of quotas and the like. Remember the code words: welfare Cadillacs, law and order, forced busing, states’ rights and cutting taxes.  By the end of the Reagan administration, a majority of Anglo voters nationally were voting to “cut taxes”, now convinced that any government spending was just going to more handouts to minorities.  Meanwhile, programs to support the middle class we being strangled and wealth redistributed to the top.

My background working with trial lawyers brought to my attention studies of how the human brain works, showing how this transition could be accomplished so rapidly and uniformly.  Our brain stem, or reptilian brain, controls motor functions and survival instincts, fight or flight, etc.  Repeated appeals to this part of the brain — fear of the other tribe, for example — can create code to control voting patterns, preempting any further thought process.  This is the brain mechanism that can “trump” the others.

Racially polarized voting is not a theory to be debated.  It has been repeatedly proven up in Federal Court for the last fifty years. This is a little known fact, but the U.S. Supreme Court requires plaintiffs to demonstrate a pattern of racially polarized voting to satisfy certain redistricting and voting rights claims. Experts do a precinct by precinct analysis of demographics and election returns.  The expert report showing this pattern of racially polarized voting filed most recently by Texas plaintiffs was not even contested by the State.  The patterns are nationwide.

I bring this up to back up an observation I have about the 2010 off-year election.  It was a White Backlash election.

In 2008, a record turnout brought us the first Black President.  Voter participation always falls off in the off-year, but in 2010, minorities were particularly complacent, having just helped elect a President of color.  However, a large percentage of Anglos were enraged (remember the Tea Party signs “We want our Country back”) and they voted disproportionately.

This was a national phenomenon.  Democrats lost many Governors, control of the U.S. House and perhaps more importantly, more than 700 seats in state legislatures that were about to do redistricting.

Republicans gained control of numerous legislative bodies, some for the first time in a hundred years.

The 2011 redistricting process provided the opportunity for these Anglo majorities to draw maps designed to keep them in power indefinitely and to control Congress.  They systematically packed some districts with a high percentage of minority voters and fragmented other minority communities into multiple Anglo majority districts.

This allowed them to rig the process to deny minority voters fair representation in Congress or the State Legislature.  Consider the makeup of the congressional delegation in these states carried at least once by President Obama:

Screen Shot 2016-02-21 at 8.40.40 AM

You can see why President Obama’s remaining agenda is blocked.  In these major states carried by the President, Republicans control two-thirds of the seats in Congress in a rigged process.  The Red States are worse.  These are not swing districts.  There are precious few of them. The Republican officeholders only have to answer to their primary voters who hate the Black President.  Thus, Gridlock.

The agenda of the next Democratic President will also be largely blocked for years – no matter who it is. We are not going to get single payer health care or free college education or a living minimum wage until Democrats get to appoint more Justices to the Supreme Court.

There are good Democratic thinkers such as George Lakoff who are showing us the way to win elections when the deck is not stacked against us.  This is Elizabeth Warren messaging.  I remain optimistic about the ultimate success of a progressive agenda in this country when we are no longer hamstrung by redistricting.

With the election system rigged only the U.S. Supreme Court can fix redistricting through enforcement of the Voting Rights Act and the 14th Amendment to the U.S. Constitution.  The Court has to stop the packing and cracking of minority communities.

The process can only begin with the election of a Democratic President this fall.  Sadly, Republican Presidents have not appointed justices friendly to voting rights in decades.

We must recognize that the process will take years with litigation in many states culminating after the 2021 redistricting.  Cases still pending in Texas, North Carolina, Virginia and Arizona can lay the legal foundation for fully restoring voting rights, but not until 2021.

The Obama Coalition must hang together to win the 2016 election.  Democrats have won the popular vote in four out of the last five Presidential elections, but those elections have been close.

I have one haunting concern about our electoral prospects this year and it is that reptilian brain theory of the American voter. The survival instinct imbedded there is politically dangerous.  Looking back on it forty-four years later, why did the very progressive George McGovern lose 49 states in the 1972 general election? I am still struck by this sweeping loss on the heels of all the social and economic progress of the 1960s.  McGovern ran against what was a very unpopular war in Vietnam, but now, thinking of our reptilian brains, were voters viewing that war opposition in the larger, more powerful frame of containment of our then arch enemy, the Soviet Union?  Did they code McGovern as not willing to keep us safe in the Cold War?  Something like that undercut him in a devastating way.

Food for thought when we Democrats have to decide who to put forward to win this year’s General Election.

We live in an era of terrorism, magnified irrational fear, and anti-Muslim hysteria.  We have seen the mood of the country turn on a dime after Paris and San Bernardino.  The brain stem is doing what it evolved to do, default us to safety.

The Republican attack machine will spend more than a billion dollars exploiting the weaknesses of our nominee, whoever it is, and provoking fear of his or her capacity to keep us safe.

We have one candidate who has been the subject of those attacks for years – and still standing.  A former Secretary of State, former resident of the White House, who is perceived to be mildly Hawkish.

Another candidate is not vetted in a national general election, who voted against the first Gulf War, the one popular world-wide for reversing Iraq’s invasion of Kuwait.  The same candidate sought conscientious objector status in the Vietnam era.

I want to see a progressive agenda succeed in this country.  I believe the New Deal Era built the middle class.  It takes government investment in hard and soft infrastructure, fair regulation of business excess, and a progressive tax system.  We don’t have the votes in Congress to get there in the near term.

But we see the path to get there. A Democrat has to win the 2016 general election.

By the way, who is your very favorite Supreme Court Justice? The notorious RBG, maybe? Appointed by Bill Clinton.

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North Carolina redistricting ruling may bode well for plaintiffs in Texas cases

Editor’s note: there was breaking news today in redistricting, and as usual, there’s nobody better to explain it than our favorite redistricting expert Russ Tidwell:

By Russ Tidwell 

While minority plaintiffs in Texas are awaiting a decision for the Three Judge Federal Panel in San Antonio regarding State House and Congressional redistricting, a new ruling out of the Fourth Circuit Court of Appeals in a North Carolina (Appeal: 14-1329) reinforces one of the major claims made in Texas.

Texas Plaintiffs have provided evidence at trial of various claims such as intentional discrimination, vote dilution, racial gerrymandering, etc.

One specific claim advanced by the Perez Plaintiffs in Texas is based on a fairly recent case, Cox v. Larios (summarily affirmed by the U.S. Supreme Court).

In simple terms, the court held that while states can usually vary the size of districts by as much as ten percent, they cannot use that population deviation for nefarious purposes.

A state can use this deviation, for example, in a State House plan to keep counties whole.  However, they cannot use such a deviation to advantage one group of voters over another (i.e. Republicans over Democrats or Anglos over minorities).

The Perez Plaintiffs presented substantial evidence of such misuse in the major urban counties of Texas.

Now, an Appellate Panel of the Fourth Circuit has ruled with minority plaintiffs in North Carolina based on the Cox v. Larios case with a set of facts similar to the claims in Texas.

This is significant, since Larios is a fairly recent decision and is only beginning to build a string of case law.

The San Antonio Court is expected to rule soon if they are to meet a timeline to change districts before the December candidate filing deadline for the 2016 elections.

Stay tuned.

Here’s more LettersFromTexas redistricting coverage.

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SCOTUS taking Texas redistricting case is potentially bad news for minorities, Democrats

This morning, the U.S. Supreme Court agreed to hear an obscure redistricting challenge to Texas Senate districts that, frankly, most court watchers have not paid much attention to. The case, Evenwel v. Abbott, had been dismissed at the trial court level.

If the Supreme Court revives this case, it has the potential to turn what’s left of the Voting Rights Act on its ear, and devastate minority representation in Texas.

Here’s how: currently, districts (Congressional, state House, state Senate, city council, etc.) are drawn based on total population. The plaintiffs in Evenwel want those districts to be drawn based only on citizen voting age population. Under their scenario, people under the age of 18 don’t exist, and non-citizens don’t exist. From a public policy standpoint, this flies in the face of reality, and of why governments exist and who governments serve. Children count; governments serve them in many ways, from health care to public education. And even non-citizens count – can you imagine firefighters not bothering to put out a house fire because an immigrant lives in the house? Governments serve everybody living within its geographic boundaries in some way, and they collect taxes from everybody living within those boundaries in some way – not just those who are citizens of voting age.

Politically, the case has potential serious ramifications for the current make-up of the Senate, and if the plaintiffs prevailed, it would almost certainly mean fewer minority Senators holding office. The current map was drawn using total population. Under the plaintiff’s scheme, the state would be required to draw maps using only citizen voting age population, not total population. Thrown out of the count would be everybody under the age of 18, and everybody who isn’t a citizen.

The Hispanic population in Texas is very young (in fact, Texas in general is very young – more than 25% of Texans are children). And Texas had an estimated 1.7 million non-citizen residents as of 2010. These residents are counted in the census (as they should be, even redistricting aside, since the funding for many federal programs depends on it). These residents also live disproportionately in the Senate districts of current minority Senators and/or Senators of minority voters’ choice – mostly in urban and South Texas.

If these children and non-citizens suddenly didn’t count toward the totals in map-drawing, the districts of most if not all of the racial minorities currently in the Texas Senate would necessarily become much larger, since the one man-one vote principle dictates that districts be roughly the same population. Since there are only so many minority Texans to go around, plus other Texans who ally themselves with minorities, it is entirely possible that these larger districts would elect fewer minority Senators, or Senators of minority Texans’ choice regardless of the Senator’s ethnicity. Senator Sylvia Garcia’s urban and Hispanic-heavy Houston district, for example, was drawn based on its total population of 812,881 people, but only contains 383,985 citizens of voting age. Meanwhile, quick-and-dirty math dictates that the new ideal citizen age voting population of any Senate district would be 522,508. Her district would have to be re-drawn to be significantly larger if the plaintiffs prevailed. While other districts’ mileage may vary, this scenario would be the rule, not the exception, in other Senate districts currently holding a significant minority population.

If the plaintiffs prevailed, the net result would be less minority representation, and presumably less Democratic representation, since all current Senate officeholders who represent a definitive minority population are Democrats, and with the exception of Senators Watson and Whitmire, are themselves racial minorities.

The bottom line is that if the plaintiffs prevail, it’s devastating news for minorities, Democrats, and progressives. Which is one key reason why conservative organizations support the lawsuit.

The good news: just because the Supreme Court opted to hear this case doesn’t mean the plaintiffs will prevail. Accepting a case only requires that four justices want it. But for a plaintiff to win a case requires that five justices agree with the plaintiff’s argument.

As is usual in voting rights and redistricting litigation, all eyes will be on Justice Kennedy – the perennial swing vote on such matters. The court will take up the case in its next session, which begins in October. Keep your seat belts fastened.

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Texas redistricting analysis: does Alabama SCOTUS ruling seal fate of Texas state House, Congressional maps?

Editor’s note: from time to time, we here at LettersFromTexas Worldwide Headquarters revisit the court action on redistricting on Texas’ legislative and Congressional maps, calling upon redistricting expert Russ Tidwell’s analysis. Here’s his latest, following recent U.S. Supreme Court action.

 By Russ Tidwell

The three judge federal panel in San Antonio is nearing a final decision on redistricting litigation for the Texas House and congressional delegation.

As previously discussed here, multiple weeks of trial have provided a mountain of evidence of intentional discrimination and dilution of the opportunity for minority citizens to elect the candidates of their choice. The post-trial briefs were filed in December.

However, it appears the panel in San Antonio was waiting for further guidance from the U.S. Supreme Court in the form of a ruling in an Alabama redistricting case. That ruling came down on March 25, and it was a victory for the Alabama Legislative Black Caucus and the Alabama Democratic Conference.  The San Antonio panel immediately ordered the Texas litigants to file additional briefs in light of this ruling.  The last of those was filed Monday.

The Alabama case involved claims of improper racial gerrymandering and provided significant clarification to this distinct line of case law stretching back to the Shaw case in North Carolina.  While minority plaintiffs in Texas felt they had adequately proven their claims of vote dilution and intentional discrimination, this ruling provided an additional clear roadmap for successful resolution of their claims.

The Supreme Court found:

We have consistently described a claim of racial gerrymandering as a claim that race was improperly used in the drawing of the boundaries of one or more specific electoral districts.

And this:

We have said that plaintiff’s burden in a racial gerrymandering case is ‘to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominate factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.

In response to the San Antonio panel’s order, attorneys representing the Perez Plaintiffs, LULAC, and the NAACP filed a brief outlining how the evidence already before the court supports racial gerrymandering findings under the Alabama opinion.  The brief documents the plaintiffs’ claims in eleven state house districts in Dallas, Tarrant, Harris, McLennan, Bell and Fort Bend Counties.  Reversing the fragmentation of these districts would re-enfranchise over 1.2 million people of color in these six counties.

While MALC’s brief was consistent with and supportive of the Perez/NAACP/LULAC filing, it made additional claims in Nueces, Midland/Ector and Lubbock Counties.  They rightfully argue that the Voting Rights Act (VRA) and the Fourteenth amendment to the U.S. Constitution should override the state’s constitutional “county line rule”.  This would provide for the creation of three additional majority Hispanic districts.

Various plaintiffs filed briefs regarding congressional claims under the Alabama decision, which I will not go into here.  However, in a previous post I discussed LULAC proposed plan C262.

Now that the Texas Legislative Council has loaded the 2014 election returns into their system and more data can be calculated, it is worth noting that the most recent and prominent Hispanic candidate of choice, Leticia Van de Putte for Lt. Governor, carried each of the nine Hispanic majority districts in that plan.  This further solidifies the Section 2 (VRA) claim for creation of such a plan with eight districts in the South Texas and border region that are majority Hispanic Citizen Voting Age Population (HCVAP).  These eight districts are at least as compact as the state’s plan. Additionally, C262 restores CD 25 in Travis County as a crossover district.

Now, it is all in the hands of Texas Federal Judges.  Watch this space.


Read other redistricting pieces by Russ Tidwell here

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Redistricting: are we entering a second “Post Reconstruction”?

Editor’s note: from time to time we check in with redistricting expert Russ Tidwell for a status report and accompanying analysis on redistricting issues currently pending before a 3-judge Federal panel in San Antonio. Russ is great at simplifying complex legal issues into layman’s terms. Here’s his latest, with our thanks:

By Russ Tidwell

Final arguments and briefings have now been filed with three judge federal panel in San Antonio and their decision on State House and Congressional redistricting plans for the remainder of the decade could be announced soon. Now that the legislature is getting underway, this is a good time to recap what is at stake in this litigation.

The implications for Texas are significant. Minority districts restored in this litigation will likely be protected in the next decade as the baseline.

There are also national implications for curbing the continued packing and cracking of minority voters.  (Under the cloak of partisanship, Anglo legislators are diluting the voting strength of minorities by packing some into already heavily minority districts and fragmenting others into Anglo dominated districts, thus blocking them from the opportunity for proportional representation.)

There is well-established case law around redistricting that calls for creating a new minority opportunity district anytime a compact majority of a single minority group can be established (i.e., majority Black or majority Hispanic), but a combination of the two doesn’t necessarily count.

While Texas is seeing explosive growth in its various minority populations, much of that growth is not concentrated in single minority neighborhoods. Rather, much of this population has been diffused into the close-in suburbs of our major urban counties and other small cities.  Multi-ethnic communities of Hispanics, Blacks, Asians and Anglos have emerged in Mesquite, Garland, Irving, Arlington, Grand Prairie, Killeen, Waco, Sugar Land, and western Harris County.

It is literally impossible to draw compact districts here that have a majority of any single minority.

As noted in a previous post, by 2008, minority citizens in many of these naturally-occurring suburban concentrations had elected the candidates of their choice to the Texas House, and this made a difference.  The House was closely divided and all minority legislators had the opportunity to be “at the table.”

The 2010 electoral tsunami swept out the minority candidates of choice in all swing districts.  The resulting Anglo supermajority in the legislature attempted to make its status permanent by dismantling the districts that had given minority citizens voice.  Alternatively packing and fragmenting those voters was the process.  Litigation ensued.

Do those minority citizens in ethnically diverse communities have voting rights?  That is what the redistricting litigation is about in large part.  The State of Texas, in closing arguments at trial, says they do not.  The state, in effect, says that if a minority citizen cannot be drawn in to a district with a majority of the population from a single minority group, they have no other voting rights protection.  Believe it or not, that is the state’s position in federal court.

The Perez Plaintiffs published a demonstration map (view the map and view the analysis) showing eleven hypothetical State House districts in suburban Texas where this fragmentation occurred. This map reverses that fragmentation and produces eleven compact districts where minority citizens would have the opportunity to elect the candidates of their choice.

These demonstration districts have a total population of 1,834,145. Just over a million of them are Black or Hispanic (1,002,389); another 184,802 are Asian.  Almost 65% of this population is minority, yet it is impossible to draw one district in this territory that has a majority of a single minority group.  The population is too diffused.

This map would recognize voting rights for almost 1.2 million people who are disenfranchised under the state’s enacted plan.  That is the significance of this litigation.

Are there five votes on the U.S. Supreme Court to further gut the Voting Rights Act and the 14th amendment to the U.S. Constitution, as it relates to such a large group of minority citizens?  Their disenfranchisement diminishes the voice of all minority legislators in an increasingly racially polarized environment.

The New Republic recently published an article chronicling the recent effective demise of the minority legislative voice in Alabama.  The Voting Rights Act of 1965 (VRA) had created a second reconstruction in the South, which for a time led to full minority participation in the legislative process.  The article asks the question, “Are we in a second ‘post reconstruction?”

Having recently seen the movie Selma, I am reminded of the brutality of voting rights struggles in the South and in Texas.  In the early part of my lifetime both Hispanics and Blacks were denied any meaningful participation in their government.  That was only changed by the VRA and Federal Courts.

The VRA was a change in the law 50 some years ago.  Have hearts changed in the south over that fifty years?  Is the law still needed?  Well, even the Attorney General of the state of Texas formally conceded in trial in Federal Court in San Antonio that voting is still racially polarized in Texas.

The fate of minority citizens in Texas is once again in the hands of Federal Judges.

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Congressional redistricting trial shows how Hispanic voting rights can be restored

Editor’s note: as was the case for the redistricting trial for the Texas House of Representatives, longtime redistricting expert Russ Tidwell sat through the recent week-long Congressional redistricting trial in Federal Judge Orlando Garcia’s courtroom in San Antonio. He was kind enough to once again share his insights here:

By Russ Tidwell

After the national census every ten years, congressional seats are re-allocated among the states.  Some states lose seats, some gain, and all districts must be redrawn to balance population.  Anglo legislators have a history of using this process to disenfranchise minority voters in their states.  This most recent Congressional redistricting cycle has, arguably, proven to be the worst one in modern times.

Texas was allocated four new districts, more than any other state. This is because we gained four million new people. Fully 90% of that growth was because of a rapidly growing minority population.

In fact, if the state had grown only at the rate of the Anglo population, Texas would not have gained any Congressional seats at all, and could have actually lost one.  So rapid minority population growth was solely responsible for us retaining one seat and picking up four more.

Question: So, when the legislature met to draw new districts, how many of these five seats were drawn to provide new political opportunity for minorities?

Answer:  None.  In fact, Hispanic Texans saw a net loss of one seat.

This is why the state has been tied up in Federal Court the last three years.


LULAC demonstration map C262. Click the image to enlarge for detail

The vote dilution, and the fact that the effort was legally flawed, is best illustrated by a contrasting demonstration map, Plan C262, which was entered into evidence in Federal court during the trial by LULAC, one of the plaintiffs in the case. Here’s a detailed fact sheet on LULAC’s Plan C262.

Evidence of vote dilution presented in the Congressional Redistricting trial last week can best be understood when organized geographically into three distinct regions:

  1. South Texas and Border
  2. Travis County in Central Texas
  3. The Dallas-Fort Worth Metroplex

South Texas and the Border Region

If you draw a line from El Paso to Odessa-Midland, then to San Antonio, continuing to Victoria and east to the gulf coast, the population around and south of that line is predominately Hispanic.

There is sufficient population in this region to draw eight effective Hispanic opportunity districts, as demonstrated by the LULAC demonstration map. The eight districts are each majority Hispanic Citizen Voting Age Population (HCVAP) and provide real political opportunity for Hispanics.

Six effective Hispanic opportunity districts already existed in this region from the previous decade.

Did the legislature simply add two more? No.

First, they took two away.  Evidence presented in trial showed they effectively gutted Hispanic voting strength in CD 23 (which runs from San Antonio to El Paso) so they could protect a first term Republican incumbent. Then they took away the Hispanic majority in CD 27, which had run from Corpus Christi to Brownsville. To protect a new Anglo incumbent elected in the 2010 Republican landslide, they instead ran the district from Corpus north to Bastrop.

They did create one new effective Hispanic district based in Cameron County, CD 34.

But then, they allegedly engaged in the creation of a sham district, CD 35, which was designed to appear Hispanic, even though it did not have a majority of Hispanic registered voters. It clearly would not have provided effective opportunity for Hispanic voting rights.  It ran from south San Antonio to south Austin, along narrow strips around I-35 and seemed to really be part of a plan to pack and crack minority voters in Travis County (discussed below).

LULAC’s demonstration map clearly shows that there is sufficient Hispanic citizenship and voting strength in South Texas to draw eight effective districts without going into Travis County:  CD 35 is based on the south side of San Antonio. CD 27 unites Hispanics in Corpus Christi with supportive populations to the south, while including coastal counties to the north. CD 23 regains sufficient Hispanic voting strength. CD 34 remains based in the Lower Rio Grande Valley. And the four other previously existing districts, CDs 15, 16, 20, and 28, all retain their core territory and are effective Hispanic districts.

The legislature could have done the right thing in South Texas, but it didn’t.

Section 2 of the Voting Rights Act effectively mandates the creation of majority Hispanic opportunity districts when it can be demonstrated that certain conditions are met, and in South Texas, the LULAC demonstration map meets those conditions.

Travis County

Evidence presented in trial showed that CD 25, based in Travis County, was an effective opportunity district for minority voters.  It was a “crossover district,” where minority voters engaged in a tri-ethnic coalition of Hispanics, African-Americans, and like-minded Anglos, to elect their candidates of choice.  Evidence presented in Court showed this voting coalition has functioned for decades and elected numerous people of color to countywide and district office.

The legislative leadership wanted to eliminate CD 25’s current incumbent, Lloyd Doggett.  But to do this they effectively destroyed the voting rights of Travis County’s minority citizens.  To eliminate Doggett, they systematically packed or fragmented these voters into five districts.  This also left Travis County, which is where Austin is, as the most populated county in the nation that does not dominate a single congressional district.  This damages the right to effective representation for all the citizens of the city and county.

The LULAC demonstration map illustrates that it was not necessary for CD 35 to encroach into Travis County.  The legislative plan unnecessarily packed Hispanics from south Travis into that district to make it possible to successfully fragment the remainder in four other districts.  This is a classic packing and cracking scheme that is likely illegal under both the Voting Rights Act and the 14th amendment to the federal constitution.

Dallas-Fort Worth Metroplex

The combined population of Dallas and Tarrant (Fort Worth) Counties roughly equals that of Harris County (Houston), and the minority proportions of the population in each metropolitan area are both similar and substantial.  But while Harris County contained three minority opportunity districts, DFW had only one.  There was ample evidence presented in court to demonstrate that the minority citizens in that north Texas region had been denied their voting rights through systematically packing and cracking their populations.

The Federal Court’s first interim map partly remedied this by allowing one naturally occurring concentration of minority voters to remain united in CD 33.  Plaintiffs seek to further reverse this fragmentation pattern and allow a total of three minority concentration to dominate districts in DFW, the same number as in Harris County.  Numerous plaintiff exhibits demonstrate how this can be done.

* * *

All told, the Congressional trial effectively presented the evidence necessary to show how the legislature minimized, and even reduced, effective minority representation, in violation of the Voting Rights Act and the constitution. This, despite the fact that minority growth in Texas is solely responsible for all four of Texas’ additional Congressional seats.

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Guest post: Texas legislative redistricting now – does it still matter?

A similar guest post by Russ Tidwell on the Congressional redistricting trial may be found here.

Editor’s note: while the Texas redistricting wars have, sadly, been largely out of public view lately, they currently rage on. The trial before a 3 judge federal court in San Antonio on the state House of Representatives map recently concluded, and a similar trial before the same court on the Congressional map is about to begin. The issues are not without importance – there’s a very good reason Republicans put so much effort into over-reaching on redistricting maps: the more they minimize minority representation, the more they institutionalize Republican majorities. The heavier the Republican dominance, the more Tea Party activists hijack the legislative process and its resulting policy. That said, the details of what Republican map-drawers have done, and why it should offend those who support minority voting rights and the Voting Rights Act, are difficult for a standard-issue Texan interested in politics to understand, if only because media doesn’t often delve into the level of detail necessary. So I asked longtime friend and redistricting expert Russ Tidwell, who has worked on the issue for 32 years and who was in the courtroom for the House map trial recently, to break it down and explain core problems in the Republican House map, why it should matter, and what difference it makes to the rest of us: 

Voting Rights Gutted in Texas State House

By Russ Tidwell

The protections in the Voting Rights Act and the 14th and 15th amendments to the US Constitution are defined by the opportunity of minority voters to elect the candidate of their choice, even in cases where that candidate does not look like them.

Hundreds of thousands of minority citizens in urban and suburban Texas have been denied a voice in the Texas Legislature because their voting strength, in naturally occurring concentrations, has been diluted by systematically fragmenting or packing their votes.

redistrictingThis intentional fragmentation can be easily seen and understood when it happens in places like Bell County, where a naturally occurring minority population in the city of Killeen is surrounded by a sea of rural Anglos. The legislature split the city of Killeen for the first time ever, removing 32,000 (2/3 of them people of color) from district 54 and moving them to district 55.  Then they took more than 40,000 people (2/3 of them Anglo) from a rural area of district 55 and added them back to district 54.  The intent is clear.  Continued Anglo domination of the district is secured.

However, it is harder for the eye to grasp this systematic process in the urban and suburban jumble of numerous districts. But this is where minority voting rights took the big hit in the 2011 redistricting.

What happened can best be explained by taking a look at Dallas County as a whole:

  • The 2003 redistricting had left six widely recognized minority opportunity districts in the south and central part of the county. The same number as the decade before. (Four were African-American and two were Hispanic controlled).
  • North Dallas had ten districts under Anglo control in 2003, with minority populations fairly evenly diffused among them in the beginning.  Over a decade of rapid demographic change, however, naturally occurring concentrations of minority voters elected their candidates of choice in four of these districts (HDs 101, 102, 106 and 107) and came within 19 votes of electing their candidate in another, HD 105.
  • Just as minority citizens had come together to elect their candidate of choice, Wendy Davis, in a senate district in neighboring Tarrant County; minority voters were able to have an effective voice in almost half the districts in North Dallas by 2008.  (Similar gains were made in other urban counties by 2008.)
  • North Dallas voters had made a difference for minority interests in the Texas Legislature.  During the 2009 legislative session (after the historic 2008 election) the House was closely divided, 74-76.  A radical Republican Speaker was deposed and replaced by a more moderate one. Legislators representing minority voters made the difference in this equation.  They had meaningful participation and significant influence on the issues of the day.
  • This did not last.  The 2010 national tsunami election swept nineteen minority candidates-of-choice from the Texas House and left Anglos firmly in control of the 2011 redistricting process.

The intentional fragmentation that followed resulted in the loss, for minority voters, of a controlling voice in four districts in North Dallas.  This cannot be fairly remedied by cramming many of those voters in one or two elongated districts, as some will propose.  That would be illegal packing.  The state may try to “settle” for this later.  That would play into their hands and continue the pattern Anglos have used for decades to minimize minority voting strength in the legislature.  If they can’t diffuse them into many districts, they will pack them into as few districts as possible.

There were at least four naturally occurring concentrations of minority voters who were engaging in coalitions to elect their candidates of choice: The City of Mesquite (HD 101); North Dallas to Garland (HD102); Irving and Grand Prairie (HDs 105 & 106) and South Garland to Lower East Dallas (HD 107). Minority voting strength would have rapidly increased in these districts over the decade, making them legally performing and protected minority opportunity districts in the future.  Minority voting rights should be restored in all four districts.

Dallas is just the best example.  This diffusion of naturally occurring concentrations of minority voters happened in Tarrant, Harris, McLennan, Collin, and Denton Counties. Voting rights lawyers have made formal claims in Tarrant (HDs 93 and 96); McLennan (HDs 56 and 57) and in the far western part of Harris County (HDs 132 and 135).

Most minority population growth now occurs in the metropolitan areas of the state; and will in the future.  But the citizen voting age populations are not moving to concentrated inner-city neighborhoods to be with people who look like themselves.  They are moving to the aging and close-in suburbs of these big counties. There is better housing there. Such mixed ethnicity neighborhoods of Hispanics, Asians, Blacks and others are our future.

If those many hundreds of thousands of minority citizens living in these mixed neighborhoods are allowed to be deprived of their rightful voice in the legislature; then minority legislators collectively may never again gain a critical mass of leverage in the legislature sufficient to be “at the table” and effectively representing their communities.

In 2009, with a State House closely divided, minority legislators were part of an informal governing coalition.

In 2011, with Anglo Republicans controlling 100 seats out of 150, minority legislators were isolated and effectively out of power.  They remain so.

This voting rights litigation will not be a success if only a small hand full of single-minority-majority seats are created here and there. This litigation is about the voting rights of the New Texas in the major metropolitan areas of the state.

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Redistricting status in Texas from thirty thousand feet

I’ve been watching this redistricting mess play out with great interest, and a healthy level of both amusement and empathy for all involved.

From the start, the state’s legal team has struggled. It might surprise some readers that I don’t particularly blame Attorney General Greg Abbott and his legal team for this, although a lot of people (including Republicans) are. After all, you try defending the crap-ass maps the legislature passed. If Abbott’s team can’t do it, it doesn’t necessarily mean that Abbott’s team is goofball-infested. Defending the indefensible is pretty rough work. The state’s whole legal effort reminds me of situations in which criminal defense attorneys artfully defend perps who damn well did it.

Various plaintiffs have struggled as well. It’s hard to know the right thing to do sometimes. Some have showed up for court every day loaded for bear and ready to rumble. Others have, like the Jack of beanstalk fame, been tempted to trade it all, for a handful of beans.

Much of my empathy has been reserved for the judges involved. I’ve never empathized more than I did during yesterday’s court hearing in San Antonio, in which it was incredibly easy to get lost in the minutia of hundreds of details having more to do with the mechanics of putting on an election than in the overriding issues involved with ensuring that districts maintain their fundamental purpose – giving all voters an effective voice in their representation.

The perfect example of the fundamentals: at yesterday’s hearing, a settlement was announced on the state Senate map. The legislature had passed a status quo map, with the exception of trying to get rid of Wendy Davis in Fort Worth. Maybe it’s because they can’t hear women’s voices. Setting aside my personal fondness for Davis, there’s nothing illegal about getting rid of her. What is illegal is how the state went about it, and the affect of doing it – they silenced the voices of the minority voters who elect Davis. Here’s a pro tip: if you want to get rid of Wendy Davis, I suggest you do so in the time-honored old fashioned way – by lying your ass off about her and convincing her constituents they need to fire her.

Why would we imagine that the state would settle on that map? Lawyers settle nothing until lawyers have to. It was established in testimony, both in D.C. and San Antonio, that map-drawers intentionally discriminated against minority voters in Davis’ district by fragmenting them, and that’s illegal. That’s what the legislature’s map did, that’s what forced the state to settle, and that’s the reason Wendy Davis’ voters will still have a voice in the Texas Senate after the next election.

It’s a similar situation regarding courtroom conversations on Congressional maps. The state’s lawyers  agreed not to oppose a new proposed compromise district in the D/FW metroplex, which would likely elect the candidate of minorities’ choice, in order to address claims of intentional discrimination by fragmenting minorities.

Yesterday a couple of the (probably exhausted and flabbergasted) judges wondered aloud if the bulk of the courtroom squabbling regarding the map for the state House of Representatives is only about a couple of districts.

Well, no. It’s not about whether there are 50 or 52 solidly minority districts. It’s about minority Texans continuing to have a voice in the districts beyond the hard core 50. It’s about the state’s efforts to silence those voices in many more than two chunks of geography. And that, in turn, is about whether legislators who represent those minorities are able to participate in meaningful dialog on legislation, or whether those legislators, like in the most recent legislative session, merely look on as witnesses, as an artificially-inflated majority assaults their constituents by cutting public education by billions, harassing them with voter photo I.D. laws, or ignoring attempts to make health care affordable to folks in their neighborhoods.

Texas has a majority minority population. There are 150 seats in the state House. The squabbling in court should not be about whether 52(ish) of those 150 districts should be the geography in which minority voices are heard.

If you’re the “quantify it” type, in addition to those 52(ish) seats, minority citizens were also decisive in electing their candidates of choice in House districts 57, 93, 96, 101, 102, 107, and 133. Minority citizens are also naturally emerging as effective deciders of their own fate in districts 26, 105, 132, and 138.

So if the remaining argument is about “just a couple of state House districts,” it’s only because lawyers cleverly, or foolishly, narrowed the focus. It’s not because minority voters in many, many other areas of Texas evaporated, were raptured, or suddenly moved to Detroit after Clint Eastwood inspired them during the Superbowl. And while the priorities of those Texans are just as real as the priorities of those living in Wendy Davis’ district, or the proposed new metroplex Congressional district, their communities are being fragmented in the exact same way, and for the same purpose: to silence their voices.

So, moving forward from yesterday’s hearing, let’s get back to the thirty thousand foot view. We now have a probable primary date, and that’s progress. There are continuing discussions about how the political parties mechanically make that primary date work, and that’s just spiffy. But please do not for a minute conclude that all the legal wranglings associated with this situation are about mechanics, legislative body counts, election calendar predictability, where Lloyd Doggett is forced to move his yard signs next, or the electability of any particular human being. And it is most certainly not about two remaining House seats still in question.

I don’t worry too much about the judges – judges have an advanced ability to walk and chew gum at the same time. But reading the resulting news stories this morning, I do worry about everybody getting lost in the mechanical weeds.

In the end, the final districts should be about ensuring that the minority citizens of this majority-minority state are not silenced due to efforts to fragment them into adjoining districts in which they have no voice. In the end, the districts should reflect an understanding of the difference between ramming policy down the throats of the legislators elected to represent those minorities, versus those legislators being enabled to participate in meaningful dialog affecting final legislative outcomes. That’s what it should have always been about.

Update: Burnt Orange Report has more on this.

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