Redistricting in Texas

Post-publication note: this post contains inaccurate information about the Legislative Redistricting Board’s role in crafting U.S. Congressional districts, but I’m leaving it up to keep the record intact (I only edit grammar or make minor wording changes post-publication). The correction and clarification are here.

What is going on now in Texas is constitutionally dangerous and damages the stability of our government. A major political distinction between the first world countries and the developing and undeveloped world is that only the former have longstanding stable democracies. When the latter classes of countries achieve stable democracies, development accelerates dramatically. Clearly, democracy as we know it will not end if the Texas redistricting plan passes, but it’s a step in a bad direction. Already, Colorado Republicans are taking steps to emulate Texas Republicans. Democrats now warn that they will retaliate in New Mexico and Oklahoma. Fighting this battle once every ten years is bad enough; if the current Republican inter-Census redistricting succeeds and Democrats respond, then it becomes a battle fought every two years-virtually ceaseless redistricting battles. And Republicans should ask themselves what the chances are that at some time in the next 20 years Democrats could take control of New York and California. Regardless of which party does it, using a modest advantage to rig the system for decades to come is just not democratic.

A reading of the chronology of events shows that the creation of the current districts–the ones DeLay is trying to overturn–was clearly more influenced by Republicans than by Democrats. The only time a majority-Democratic body stepped into the process, it approved a plan that was drafted by the Republican-controlled Texas Senate. The Texas House Research Organization authored an informative report that contains an excellent summary of the various redistricting battles between 2000 and the end of 2002. The following account is based on this report and various Google sources.

Following the Census, in 2001 the Texas House and Senate created but did not pass redistricting plans. Apparently, the two plans were quite similar, with differences in only three districts, as described below. Under Article 3, Section 2 of the Texas Constitution, this failure to pass a plan mandated convening a Legislative Redistricting Board (LRB). As shown in the addendum, the LRB had four Republicans and one Democrat. Shortly after the LRB convened, on July 3, 2001, Governor Rick Perry declined to call a special session of the Texas legislature, meaning that the eventual districts would be up to the LRB and the courts.

On July 23, 2001, a three judge panel in Dallas met and set a 10/1/2001 deadline for state courts to consider redistricting. The next day, the LRB voted 3-2 (Aye: Cornyn, Dewhurst, Rylander; Nay: Laney, Ratliff) to pass the districting plan created by, but not enacted by, the Texas House. Lt. Gov Bill Ratliff, who voted against, is a Republican. The plan was then sent to the U.S. Department of Justice for review under the terms of the Voting Rights Act, a step that allows the Justice Department to check for racially biased gerrymandering.

In the meantime, the LRB plan went to the State Court for review. After a venue battle in which Democrats wanted the case decided in relatively liberal Austin while Republicans preferred more conservative Houston, the case landed in Judge Paul Davis’ court, a Democrat. Judge Davis initially adopted a plan proposed by Republican Lt. Governor, Bill Ratliff, and then made revisions based on a plan proposed by Democrat Pete Laney, issuing a final plan on 10/10/2001. Based on accounts at the time (e.g., here), Davis’ initial plan was likely to tip three districts towards Republicans while the revised plan was likely to leave the balance of power unchanged.

Nine days later, the Texas Supreme Court invalidated the Davis plan. The Texas Supreme Court currently has nine Republicans; at the time, there were at most three Democrats on the court, though I believe there was only one (Richard Baker). So Republicans overturned the Democratic Judge’s plan, which was based primarily on the plan drafted by the Republican-controlled legislature and approved by the Republican-controlled Legislative Redistricting Board. This ruling by the Texas Supreme Court effectively took the matter out of the state’s hands, and placed it in the hands of a panel of three federal judges.

Now the picture becomes cloudier because there are actually two “three judge panels”, the Tyler panel (one Republican and two Democrats) and the Dallas panel (two Republicans and one Democrat). Both are chaired by 5th Circuit Justice Patrick Higginbotham, a Ford appointee. On balance, my reading of the chronology indicates that most of the action occurred in the Tyler panel. The addendum gives the composition and political affiliation of each panel.

In early November, the Tyler panel stated that it would not use the LRB proposal as a basis for drawing districts unless and until the Department of Justice finishes its Voting Rights Act review, which Justice completed on November 16th. The Justice Department found that the LRB plan illegally split up three districts in ways that reduced the portion of Spanish surnames in any one district. That is, the new plan reduced by three the number of districts with a majority of Spanish surnames. So the Tyler panel made revisions to correct this flaw, while otherwise leaving the plan unchanged. The net result of this was that the panel adopted the original plan proposed by the Texas Senate, which was identical to the Texas House version, but without the Spanish surname gerrymandering. Oddly enough, between 2000 and 2002, the Texas House was controlled by the Democrats (hence, Pete Laney’s Speakership) and the Texas Senate was controlled by Republicans. So at the end of the day, the adopted districts were drawn by Republicans.

In 2002, the Republicans also took control of the Texas House, which presumably was the inspiration for Tom DeLay’s power grab. He is now leading an effort to overturn a plan that (1) was drafted by the Republican-controlled Texas Senate, (2) in 29 of 32 districts is identical to the one passed by the Republican-controlled Legislative Redistricting Board, and (3) was approved by a panel of federal judges. Admittedly two of three judges were Democrats, but they nevertheless approved the Republican plan (Judge Hannah called the districts a political gerrymander, but opined that they did not violate federal law).

On balance, there’s really no case to be made that Republicans were excluded from the 2001 redistricting process, which should mean there is no basis now for an additional redistricting. If in spite of this, DeLay succeeds it is likely to give Republicans 4 to 6 more seats in the House.



You can see maps of the redistricting process in various stages here.

The Legislative Redistricting Board

Attorney General John Cornyn (R)

Land Commissioner David Dewhurst (R)

Speaker Pete Laney (D)

Lt. Gov. Bill Ratliff (R)

Comptroller Carol Rylander/Strayhorn (R)

The Three Judge Panels


Patrick Higginbotham (5th Circuit)–Ford Appointee

A. Joe Fish (District)–Reagan Appointee

Sam Lindsay (District)–Clinton Appointee


Patrick Higginbotham (5th Circuit)–Ford Appointee

T. John Ward(District)–Clinton Appointee

John H. Hannah (District)–Carter Appointee

State Judge Paul Davis (D-Austin)

UPDATE: Off the Kuff has an interesting discussion of who is likely to win and lose under the new plan.