A new redistricting lawsuit filed by a national conservative group aims to make sweeping changes to the way Texas does politics, effectively diminishing the representation of non-white voters in the Texas Senate. It’s a bold effort, and while it might not win success this election cycle, Texas election law expert Michael Li says it could prove to be an important “test case” that foreshadows “one of the coming battles we’ll see in the next redistricting cycle.”
The lawsuit was filed yesterday in U.S. District Court in Austin by the Project on Fair Representation, a one-man outfit based in Virginia that’s scored a number of high-profile legal victories in recent years, including a successful effort to strip a key provision of the Voting Rights Act of 1965. The suit seeks to overturn the longstanding method by which the Texas Legislature draws state senate districts. Texas, like all other states, draws districts that contain the same total population, using the last available round of census data. After the 2010 census, the Legislature aimed to draw 31 districts that each contained about 811,000 people.
The conservative group’s legal challenge objects to the fact that that number includes many people who can’t vote, including children, convicted felons and, most important, non-citizens—both undocumented migrants and permanent residents who are foreign nationals. The suit argues that counting people who aren’t eligible voters is a violation of the Fourteenth Amendment. The Project on Fair Representation wants the Legislature to attempt to draw senate districts that have an identical number of eligible voters, or citizen voting age population (CVAP.) Under that method, each senate district would be drawn to have about 502,000 eligible voters.
That might sound like a relatively innocuous change, but it would dramatically alter the political landscape in Texas. Redrawing districts under the new rules might decrease the political polarization in the state Senate—creating more ideologically-similar districts—but at the same time it would dramatically lessen the voice non-white voters have in the political process. Those who are too young to vote, or legally unable to vote, wouldn’t be counted as people when it comes to distributing representation in the state Senate. And urban areas like Houston, which have a large number of non-voting residents, would be effectively disadvantaged in the Senate.
The state senate districts with the highest number of non-voters are represented by state Sen. Sylvia Garcia (D-Houston) state Sen. Rodney Ellis (D-Houston) and state Sen. Eddie Lucio (D-Brownsville), all of whom currently represent both a large number of children and non-citizens. They’re also among the most progressive members of the Senate.
If the conservative group’s plan were adopted today, all three would have their districts redrawn to include more eligible voters. That would mean, especially in Houston, likely pulling from the region’s pool of Anglo voters, according to Li. And those senators would also represent more people than others. Poor and young residents of the district would effectively have their voices in the Senate diluted, as their elected senator found themselves with many more constituents than before.
Meanwhile, the senators who represent districts with fewest non-voters would include state Sen. Bob Nichols (R-Jacksonville) and state Sen. Craig Estes (R-Wichita Falls) who have whiter electorates. Their districts might not change much.
Li says the conservative group’s effort, if successful, might make certain Democratic-leaning districts more politically competitive. But asked specifically about Ellis’ and Garcia’s districts—the biggest outliers—he said the changes might be less about political affiliation than which voices are represented. “I don’t think the risk is that it becomes a Republican district per se,” he said. “But there clearly is a political benefit here, and the benefit doesn’t favor African-Americans and Hispanics.”
Moreover, he says, such a plan would be difficult to implement. The true number of voting eligible residents in a given area would be “very difficult to tabulate.” The Census doesn’t ask about citizenship status. And to exclude voting-age felons, you’d need to ascertain and track their status. “It’s really hard to do this on a state level,” he says, “especially in a state that’s as complicated as Texas.”
No state has implemented such a system, though Li says an increasing number of people on the right are giving it more consideration. He says he expects the Project on Fair Representation’s Texas suit to become “sort of like the big test case on this.”
Asked if he thinks the effort could be successful, Li hedges his bets. “It remains to be seen. I would think it would be a hard sell,” he says, “but then again I had thought that some of the other things that they’ve tried were hard sells too.” The Project on Fair Representation provided counsel to Shelby County, Alabama, which served as the plaintiff in a lawsuit that successfully voided important provisions in the Voting Rights Act of 1965.
The lawsuit will be considered by a three-judge panel, and could be combined with other redistricting cases currently being considered in San Antonio. If appealed, the case will go directly to the Supreme Court for review.