State and Federal Law Governing Redistricting in Texas Prepared by the Staff of the Texas Legislative Council Published by the Texas Legislative Council P.O. Box 12128 Austin, Texas 78711-2128 Lieutenant Governor David Dewhurst, Joint Chair Speaker Joe Straus, Joint Chair Debbie Irvine, Executive Director August 2011 The mission of the Texas Legislative Council is to provide professional, nonpartisan service and support to the Texas Legislature and legislative agencies. In every area of responsibility, we strive for quality and effi ciency. Copies of this publication have been distributed in compliance with the state depository law (Subchapter G, Chapter 441, Government Code) and are available for public use through the Texas State Publications Depository Program at the Texas State Library and other state depository libraries. An online version of this publication can be found at http://www.tlc.state.tx.us/redist/publications.html. Additional copies of this publication may be obtained from House Document Distribution: In person: Room B.324, Robert E. Johnson, Sr., Legislative Offi ce Building 1501 N. Congress Avenue By mail: P.O. Box 12128, Austin, TX 78711-2128 By phone: (512) 463-1144 By fax: (512) 463-2920 By e-mail: [email protected] By online request form (legislative offi ces only): http://bilreq/House.aspx Table of Contents Introduction ....................................................................................................................................1 Chapter 1 The Texas Redistricting Process ......................................................................................................5 Chapter 2 One Person, One Vote: The Equal Population Requirement .........................................................23 Chapter 3 Minority Vote Dilution and Section 2 of the Voting Rights Act ....................................................55 Chapter 4 Federal Preclearance: Section 5 of the Voting Rights Act ............................................................79 Chapter 5 Constitutional Prohibitions Against Racial Discrimination and Racial Gerrymandering ............................................................................101 Chapter 6 Partisan Gerrymandering .............................................................................................................121 Chapter 7 Substantive Redistricting Standards in the Texas Constitution ...................................................137 Chapter 8 Court-Ordered Redistricting Plans ...............................................................................................153 Introduction In Wesberry v. Sanders, the landmark voting rights case extending the principle of one person, one vote to the election of members of the U.S. Congress, the U.S. Supreme Court stated that “[n]o right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”1 It has long been recognized that manipulating legislative, congressional, and other elective districts can be just as effective in fencing disfavored groups out of the political system as directly prohibiting the right to vote itself. However, before 1962, federal courts and the courts of most states refused to hear cases challenging the composition of those districts. The courts took the position that redistricting is an exclusively political matter in which judicial involvement would be inappropriate. The supreme court summarized that position in 1946 in Colegrove v. Green, a suit challenging the validity of Illinois’ congressional districts on a number of constitutional grounds, including the population inequality among the districts: It is hostile to a democratic system to involve the judiciary in the politics of the people. The petitioners urge with great zeal that the conditions of which they complain are grave evils and offend public morality. But due regard for the Constitution as a viable system precludes judicial correction.2 The court concluded that the federal judiciary should not enter the “political thicket” of redistricting.3 Until the supreme court reversed its position in the 1962 case Baker v. Carr,4 courts routinely dismissed redistricting challenges. In Baker, the court fi nally abandoned the hands-off approach exemplifi ed by Colegrove, holding that the federal courts must consider and decide claims by disgruntled voters that legislative redistricting plans violate their federal constitutional rights. The need for judicial scrutiny of districting plans was especially apparent in light of the extreme population disparities among districts that existed in many states. Since those who suffered most from such malapportioned districts lacked the very legislative representation needed to remedy that malapportionment in the redistricting process, federal judicial intervention was necessary to break the incumbents’ stranglehold. The court recognized that, as a matter of political reality, incumbent state legislators could not be relied on to fully protect the voting rights of all citizens at the cost of their own political power. Since the Baker decision opened the federal courthouse to legal challenges to the composition of electoral districts, challenges under state and federal law against both state and local redistricting plans have become commonplace. U.S. Supreme Court decisions handed down since Baker have recognized three major constitutional standards governing redistricting plans: (1) districts must be of equal population to ensure that the value of every person’s vote is substantially equal; (2) a plan may not intentionally dilute the voting strength of members of a racial or ethnic minority group; and (3) a plan that contains districts drawn primarily on the basis of race or ethnicity requires a compelling justifi cation. 1 Within three years of the supreme court’s decision in Baker, Congress enacted the federal Voting Rights Act of 1965, which was substantially revised in 1982.5 The act introduced a whole new body of statutory law to help enforce the guarantees of the U.S. Constitution against racial and ethnic discrimination in the electoral process. The Voting Rights Act is the single most important law protecting the voting rights of racial and ethnic minority groups. The act has had a revolutionary effect on state and local voting practices in general and on redistricting plans in particular. Section 5 of the act requires certain jurisdictions, including the State of Texas, to obtain from federal authorities prior approval of any redistricting plan. Section 2 of the act allows members of a racial or language minority group to challenge a redistricting plan that limits or diminishes their opportunity to participate in the electoral process and to elect representatives of their choice. In addition to challenges based on these federal constitutional and statutory grounds, a substantial amount of litigation has occurred in state courts challenging redistricting plans as violative of state constitutional requirements. Since no two states have identical constitutional provisions governing redistricting, this litigation has developed independently in each state. The interplay between sometimes inconsistent state and federal requirements and the diffi culty of complying completely with both further complicate redistricting law. There has been a great deal of continuity in redistricting law since the 2001 edition of this publication, but several areas of the law are still developing. The tolerance for population deviations in redistricting plans for districts other than congressional districts appears to be uncertain once again (see Chapter 2). Congress’s 2006 renewal of Section 5 of the Voting Rights Act raises questions about the application of the reworded statute and even the future viability of the preclearance requirement applicable to jurisdictions such as Texas based on coverage formulas derived from 40-year-old elections (see Chapter 4). Citizenship data has become a necessary component of a Section 2 vote dilution analysis in Texas (see Chapter 3), and yet the source and reliability of that data have changed substantially in the last decade (see Chapter 1). Racial gerrymander claims were prominent in litigation in the 1990s, while in the 2000s they have largely faded away (see Chapter 5). Claims of partisan gerrymandering, which have never succeeded, continue to fade away as well, although the possibility of such a legal challenge remains (see Chapter 6). This publication is intended to assist the Texas Legislature in carrying out its redistricting responsibilities and to provide information about Texas legislative redistricting to the public and other interested persons. It focuses on the legislative redistricting process under Texas law and the redistricting rules provided by state and federal law applicable to the four statewide bodies for which the legislature is to draw new districts after publication of the 2010 federal census: the state’s congressional delegation, the Texas Senate, the Texas House of Representatives, and the State Board of Education. Local governments in Texas are also subject to the federal constitutional standards and the Voting Rights Act. After publication of the 2010 census, election districts for local governmental bodies, such as county commissioners precincts, city council wards, and school board districts, must be redrawn to eliminate