The Legacy of Texas' Redistricting Experiment
In May 2001, then-U.S. House Majority Whip Tom DeLay was driving around Austin with one of his top aides, Jim Ellis, when they hatched a grand political scheme. They would elect enough Republicans to the state Legislature to redraw Texas’ congressional districts in mid-decade for maximum GOP advantage in the U.S. House. They weren’t thinking small. They hoped to add six to eight Republican seats, ensuring a GOP House majority for a generation and, eventually, to boost DeLay into the speaker’s chair.
You probably know the rest: the coordinated funneling of corporate money into the 2002 legislative elections, the surprise redistricting hearings in the 2003 session, the Democrats’ quorum-busting flights to Ardmore and later Albuquerque, DeLay stalking the halls of the Texas Capitol to broker the final deal, and the two-and-a-half year battle in federal court.
On June 28, the Supreme Court issued its ruling in the redistricting case, LULAC v. Perry. A seven-justice majority deemed that Texas’ mid-decade rejigging of a court-drawn congressional map was constitutional. By a 5-4 vote, however, the court also ruled that the reworked version of U.S. Rep. Henry Bonilla’s 23rd District in South Texas disenfranchised Latinos and thus violated the Voting Rights Act. Bonilla’s district must be redrawn. That likely will impact four or five other congressional districts. The federal three-judge panel that originally heard the case in 2004 has set a hearing for August 3 in Austin to rework the map. As of this writing, it’s anyone’s guess what the districts will look like come election day in November.
More than five years after DeLay and Ellis launched their plan, we’re entering the final chapter of the redistricting saga. It’s not at all clear who—if anyone—has won. DeLay’s political career is over. He and Ellis are under criminal indictment and will soon stand trial in state court on first-degree felony charges of laundering corporate money into campaigns. Some of the state’s most senior Democrats, including the Metroplex’s Martin Frost and Abilene’s Charlie Stenholm, lost their congressional seats. Republicans gained six seats in 2004 as a result of DeLay’s map, though some of those are now in jeopardy. Meanwhile, thanks to a massive loss of congressional seniority because of redistricting, the people of Texas are now represented in Washington by their weakest congressional delegation in decades.
What does it all mean? The Observer recently spoke with a number of leading public officials, attorneys, and political commentators about the long-term impact of the Supreme Court ruling and the legacy of Texas’ experiment with mid-decade redistricting. Following are excerpts from some of those conversations.
Democrat Martin Frost served in the U.S. House for 25 years. His 24th Congressional District, which spanned Tarrant and Dallas counties, was redrawn during the 2003 redistricting. In 2004, he ran unsuccessfully against incumbent Republican Pete Sessions of Dallas in District 32. Frost now serves as a public policy scholar at the Woodrow Wilson International Center for Scholars in Washington and as a commentator on Fox News Channel.
“This opens the barn door wide. I think you’re going to see a lot of jurisdictions change district lines in the middle of the decade, whether it be county commissioners or school boards or city councils or state legislative districts or congressional districts. I think it’s a bad result for the country. I would hope that something is done about it. Obviously Congress would either have to pass a law providing for once-a-decade redistricting, or states would have to make it very clear through their constitution or statute that it could only be done once a decade.
“We had a tradition in this country for the last 100 years or so that this is only done once every 10 years. Of course Tom DeLay decided to ignore the tradition in the United States and to force this issue in Texas, and they were successful. Now I hope somebody will find a remedy so that you can’t do that other places.
“People who want to change districts will look at this opinion, and they won’t even think about Tom DeLay. They’ll say, ‘Well, the Supreme Court said it was OK, let’s redraw the lines.’ It’s hard enough right now for people to know who their representative is when the lines are drawn only once every 10 years, particularly in a major metropolitan area like the Dallas-Fort Worth area, like Houston, where you have multiple districts. A lot of people are confused about who their congressman is. If you change the lines every few years, they’ll never know who their congressman is. And it just opens the door for mischief, for partisan mischief. It’s a very unfortunate result.
“Congress could pass a statute providing that districts can only be drawn every 10 years. Or individual states could do something like establish a nonpartisan commission, and say that this commission is only authorized to act every 10 years. Arizona and Iowa are examples where you have nonpartisan commissions that seem to work very well. Only a few states have those, but hopefully more states will adopt that approach.
“I’m opposed to mid-decade redistricting. Period, end statement. I don’t care if it’s Democrats or Republicans. I do think there will be a temptation on the part of Democrats, not only in California, but in New York. You could have all elements in place in New York, perhaps in California. They’re already in place in Illinois—you already have a Democratic legislature and a Democratic governor in Illinois. So there are states where Democrats could do this. As I say, I’m opposed to this no matter which party it helps. I think it’s terrible for the democratic process.”
Republican Jeff Wentworth has served in the Texas Legislature for 18 years and has represented San Antonio in the state Senate since 1993.
“I was not surprised by the ruling. I actually flew to Washington and sat in on the two-hour oral arguments for the U.S. Supreme Court several months ago and was convinced at the conclusion of that hearing that based on the questions they asked, that they would either let the plan stay as it was entirely or they would mess with two or three districts, because they specifically mentioned dividing Webb County in two. And so that was not a surprise to me that they wound up saying that something had to be tweaked in that congressional district.
“The larger implication, frankly, I don’t believe is nearly as dire as some quotes that I’ve read. If you stop and think about the 50 states, I think about five of them are so small in population that they only have one congressman anyway, so there’s no way to redistrict those five states. There are another half dozen or so, maybe six or eight, that are covered by a [nonpartisan] commission. So there won’t be any change by legislatures in those states. And then in others they’ve got state statutes that preclude redistricting more than once every 10 years. So immediately you’ve got about 20 states or so that won’t be affected by this ruling. Of the remaining 30 or so states, you have to have one party or the other in total control of that state. They’ve got to have the governor, the senate and the house, all three. In any state where any one of those three is not held by the majority party, they’re not going to get redistricting through that state. So we’re talking about considerably less than half the states that will be affected, and my guess is you’re probably talking less than 10.”
Buck Wood is an Austin attorney specializing in school finance, ethics, and election law. He is a former director of the Elections Division of the Texas Secretary of State’s office. He has also served as director of the public interest group Common Cause, and was an aide to former Comptroller and Lt. Gov. Bob Bullock.
“[The decision] is disappointing because, it’s this business—not that I think it will happen very much—that any time you have a regime change [redistricting will occur]. It doesn’t leave a lot of room for appeals on political gerrymandering. This case was about as bad as any you can imagine as far as political gerrymandering is concerned, and the court didn’t seem concerned about that.
“As far as the impact of what they did do, it may have a significant impact. I’ve been fooling around with redistricting since the ’60s. [Redrawing District 23] could affect half a dozen different districts easily. It would be hard not to affect four or five.
“There are two possible scenarios: Draw new lines to take care of the problem, and we have in effect reruns of the primary elections, or we have an open general election. It all depends on timing. There have been instances where the federal courts have said, ‘Okay, your districts are bad. We’re going to redraw them, and in those areas where the districts are bad, we’re going to have an open election. Anybody can run.’ Those have been held across the country. I don’t particularly like that idea, but I’m not sure that we have enough time to run new elections. Or the three judges can say, ‘We’re just going to let elections be held under [the current] system.’ That’s your only two choices: You fix it next election, or redraw the map.”
Journalist and political commentator Harvey Kronberg is editor of the online newsletter Quorum Report.
“What they ruled was that a legislature should have the prerogative to replace a court-drawn map. That’s essentially all they said. What’s worrisome is, there was a sentence in there that said the statutes in the Constitution are silent on mid-decade redistricting. But the only thing they authorized was replacing court-drawn maps. So I imagine that would have to be litigated again if a legislature just decided to come in and redraw a map.
“It’s clearly destabilizing under any circumstance. It undermines any sense of political continuity for a decade. In my opinion, it further disenfranchises the voter—puts the voter at the mercy of the political process instead of the political process at the mercy of the voter. There’s absolutely no way to hold anybody accountable in the political process if you can do multiple redistrictings in the course of a decade.
“We already have a circumstance now where the November election is pretty much irrelevant. It’s the primary that’s the only election that counts. The irony is that the only constitutionally mandated election is the one in November. And the Supreme Court just potentially neutered the November election. Because what mid-decade congressional redistricting would be about would be to fragment communities of interest to prevent them from having any expression.
“Those are my predominant reactions: It’s further disenfranchising all voters; it’s neutering the November election; it’s denying communities the ability to validate or repudiate what their Congress or legislature are doing.
“Left to its own devices, I don’t think there was very much taste here in Texas to do the redistricting. It required an external impetus. Had DeLay not been adamant, it might not have happened.
“What’s not talked about enough is the loss of seniority. As a result of this—and I don’t care about which party—we may end up carving out more seniority. Texas now has the weakest congressional delegation it’s probably had in a century. Washington doesn’t care about the seniority of each state class. But the states—when they realize what they could give up in the course of a redistricting, there’s another disincentive. The unwritten story is that a state like Texas—we’re getting our [federal] reimbursement on [hurricanes] Katrina and Rita in dribs and drabs because we’ve got no stroke in Congress anymore.”
James Bopp is an Indiana-based Republican election lawyer. He has argued numerous cases before the U.S. Supreme Court. He currently represents the Republican Party of Texas in federal court over Tom DeLay’s attempt to remove himself from the November ballot in Congressional District 22.
“It’s always been fair to view redistricting as a proper function of the legislature. Except for the application of the Voting Rights Act—which is a federal law that regulates it to a certain extent—we have a pretty ringing declaration that it’s still a legislative prerogative.
“The presumption has always been that redistricting is a legislative prerogative. This has simply reaffirmed that. It’s not like a change in law. It’s actually just reaffirmation of what everyone already believed. Everyone has always thought that the legislature could do it at any time unless their state constitution prevented them from doing that. The whole point of this case was to change the law to prevent redistricting from occurring except in conjunction with the census and, of course, the court refused to do that. So it’s not opening any gates that weren’t already wide open. This was an effort to restrict what was believed to be the law and has now been reaffirmed to be the law.
“No one thought that the Constitution demanded [every 10 years]. There was no case that said you couldn’t redistrict in the middle of the decade. So they were trying to invent things, create things. And, of course, the court refused to do that. So what has always been legal continues to be legal. That is not a change in law.
“It’s a difficult political step to take that requires unanimity among the branches of government. It requires you to have enough authority within each branch of the legislature for you to prevent walkouts. Look at what Texas went through, for goodness sake. It was a horrendous political struggle. People just aren’t interested in it—they have other things on their plate. It’s the type of thing people will rarely have the power and desire to accomplish. It has been rare, and it will continue to be rare because of all the political constraints and all the political dynamics that are necessary to get the job done.
“The entire effort to impose much more substantial constitutional limits on state redistricting has now been rebuffed. So their effort to change the law has failed. We are where we were.”
Tim Eaton, Barbara Belejack, and Richard Whittaker contributed to this story.