The right has an audacious plan to, once again, use the redistricting process to maintain power. At ALEC’s annual conference in Austin, Republican state legislators learned how to navigate the legal and political challenges that will likely arise.
Last week, more than 200 conservative state lawmakers from around the country packed into a hotel conference room in Austin for a panel session entitled “How to Survive Redistricting.” The verdict? As the panel of battle-hardened Republicans advised, it’s a political bloodsport. Be cautious, yet ruthless.
The session was part of the annual conference for ALEC, a powerful cohort of legislators and corporations that develops and advances right-wing legislation in statehouses around the country. For a group that largely focuses on the free-market priorities of its industry backers, the focus on redistricting is a sign of just how high the stakes are for conservatives in the upcoming redistricting cycle.
“If Republicans lose seats in the redistricting process, ALEC loses power,” said Jay Riestenberg, deputy communications director at the national government reform group Common Cause. “At the end of the day, the legislators are what ALEC offers to their corporate funders.”
The conference came at a critical moment in the battle over how electoral maps are determined. The Supreme Court recently delivered a huge victory for Republicans, ruling that the federal judiciary has no ability to police partisan gerrymandering of congressional districts. As Democrats and redistricting reformers are trying to prevent Republicans from locking in another decade of politically skewed maps, the GOP is beginning to organize their strategy for the next round of redistricting—and ALEC is poised to play a central role.
ALEC became a dominant force in state-level politics in the wake of the Republican takeover of state legislatures in 2010. The group is on the policy vanguard of the right, drafting model legislation for legislative members on everything from “Stand Your Ground” gun laws and anti-Boycott, Divest, and Sanctions measures to industry-backed laws that make it a felony to physically protest oil and gas pipelines and other infrastructure. In many ways, Texas is the epicenter of ALEC-style politics. Many of the state’s leading corporations, industry associations, and conservative organizations have funded ALEC. While membership rolls are kept private, nearly 60 Texas state lawmakers—roughly a third of the legislative body—have known ties to ALEC, according to a report by Common Cause. Texas House Redistricting Chair Phil King is one of the group’s most influential members.
Now ALEC appears to be positioning itself as a key player in the scramble to maximize Republican power for another decade. The call for independent state redistricting commissions, a top priority for reformers, has been gaining traction in recent years. But most Republicans vehemently oppose the idea, arguing that it takes power away from democratically elected officials. Last year, the group introduced a model resolution “reaffirming the right of state legislatures to determine electoral districts.”
Most of the legislators in attendance had never been involved in redistricting before and were eager to learn from party veterans about how to navigate its accompanying procedural, political, and legal challenges.
The marquee panel, entitled “How to Survive Redistricting,” was led by Texas state Representative Phil King, who chairs the House committee on redistricting. He was joined by elected officials and top GOP lawyers who have decades worth of experience drawing aggressively partisan maps and defending them in court.
King played a critical role in the Texas GOP’s contentious redrawing of the state’s congressional map in 2003. During the normal 2001 redistricting cycle, Democrats still controlled the state House and gridlock prevented the legislature from passing a new federal map. So in 2002, then-House Majority Leader Tom DeLay funneled hundreds of thousands of dollars in corporate contributions into a state PAC that helped elect a Republican majority in the Texas House for the first time since Reconstruction, giving the party total control of the maps. The off-year redistricting was an unprecedented and transparently partisan effort to bolster the GOP’s U.S. House majority and aid President George W. Bush’s political agenda. “My goal was to defeat as many Democratic incumbents as possible in order to give us five or six additional seats,” King said in 2003.
King’s map arguably provided a blueprint for the Republican Party’s national redistricting strategy. After taking control of state legislatures across the country in 2010, Republicans drew aggressively partisan maps that took the art of gerrymandering to new extremes. With algorithmic precision, map-drawers wrapped GOP incumbents in the electoral equivalent of bubble wrap, torpedoed Democratic rivals, and packed and cracked minority voters. While these maps locked in the GOP’s newfound political dominance, they also prompted several high-profile lawsuits over racial and partisan gerrymandering, all while exposing the seedy underbelly of partisan redistricting to the public.
Still, the political spoils have been immense and Republicans clearly feel vindicated in light of the recent Supreme Court ruling. “You should not be discriminating on the basis of race, but engaging in partisanship because you want to benefit your political party is perfectly acceptable under the law,” Hans Von Spakovsky, an influential conservative lawyer and former member of President Donald Trump’s ill-fated voter fraud commission, said at the conference.
But partisan gerrymandering can only get you so far in the face of unfavorable political, geographic, and demographic headwinds.
The GOP has embarked on a highly controversial and legally dubious crusade—led by Trump—to change how districts are drawn in a way that requires a radical reinterpretation of the Constitution’s “one person, one vote” principle. Electoral districts must have roughly the same number of people. Right now, states draw those districts based on total population counts, but for years, party operatives have quietly plotted to draw state legislative districts based solely on the voter-eligible citizen population—a move that would increase the power of predominantly white areas and diminish the power of heavily Hispanic areas where more people are likely to be legal residents or undocumented.
Trump launched this effort by demanding that the Census include a citizenship question. He eventually abandoned that effort in the face of a legal fight and instead issued an executive order demanding that federal government agencies hand over all the information they have on immigration and citizenship status to the Census Bureau. The administration hopes that the data will be used by state legislatures that want to prohibit noncitizens from being considered in redistricting.
Legislators at the ALEC redistricting panel appeared eager to do just that. After an informational presentation by an U.S. Census Bureau official in the first part of the session, state legislators pushed her for details on how and when they could get their hands on the information. “For states that want to use citizenship, you will have the data,” the official, Census Bureau stakeholder relations chief, Kathleen Styles, assured them.
During the subsequent panel, von Spakovsky urged attendees to “seriously consider” using voting-age citizen population to do redistricting, calling it “a matter of fundamental fairness.”
“The higher the number of noncitizens in a district, the greater the chances [the district is] going to vote for a liberal,” he said. “The higher the number of citizens in a district, the greater the chances [the district is] going to vote for a conservative.” It’s for that reason, he claimed, that “the left does not want us to have accurate data on the number of citizens in the country.”
Conservatives are counting on the new right-wing Supreme Court majority to facilitate the process. In 2016, the Supreme Court unanimously ruled in Evenwel v. Abbott—a case from Texas—that states are not required to use voter-eligible population to draw districts. However, they left open the question of whether states are entitled to do so if they wish. The court is expected to take up the matter in the near future.
Heading into what will be one of the most consequential redistricting cycles in American political history, panelists counseled an abundance of caution. “Start with the idea that you’re going to be sued,” Cleta Mitchell, a prominent conservative activist and lawyer, warned the audience. The very existence of the panel could provide fodder for lawsuits, she said, pointing to a ThinkProgress article about the ALEC workshops that she said created a false narrative that “we’re teaching you how to gerrymander.”
“Your notes from this conference and this workshop will probably be part of a discovery [in a future lawsuit],” Mitchell said. “So my advice is if you don’t want it turned over as part of discovery, you probably ought to get rid of it before you go home.”
As von Spakovsky said, “Don’t say anything in emails or in private that you don’t want to see on the front pages . . . because if you get into litigation it’s all going to come out.”
These warnings come after a trove of emails from Thomas Hofeller, the GOP’s gerrymandering mastermind, were recently discovered after his death. One of the documents was an analysis that Hofeller conducted in 2015 assessing the political impact of drawing political maps based solely on voting-age citizen population. He used the Texas House as a case study and found that such a strategy would be highly “advantageous to Republicans and Non-Hispanic Whites,” costing Democrats several seats in predominantly Hispanic areas because noncitizen Hispanics and their children would be discounted. But Hofeller noted that Republicans would need granular data on citizenship in order for the plan to work. “Without a question on citizenship being included on the 2020 Decennial Census questionnaire, the use of citizen voting age population is functionally unworkable,” he concluded.
Trump soon took up that cause, echoing Hofeller’s legal rationale that the data was necessary to better enforce the Voting Rights Act. Lawyers suing the administration over the citizenship question entered Hofeller’s study as evidence that the policy goal was purely partisan.
Republicans seem to have internalized the need for greater caution.
As the Dallas Morning News first reported, Republicans did manage to sneak through a last-minute law that allows legislators and their staff to keep secret all communications pertaining to a “legislative activity or function.” Voting rights advocates saw the move as a clear attempt to insulate Republicans from legal exposure in the next redistricting cycle.
King dismisses allegations that Texas Republicans have consistently rigged the maps in their favor. “There’s no evidence to support that anywhere,” King told the Observer. He said he wanted to ensure the redistricting process will go as smoothly as possible. “It’s really simple. If we follow the law, if we’re transparent, and if we treat other people the way we want to be treated, we’ll do a good job,” he said. His committee has already scheduled public hearings around the state.
Still, voting rights advocates remain concerned that Republicans—under siege by ascendant state Democrats—will go to extreme lengths to maintain power. And in Texas, Republicans may consider drawing their maps based on citizen-only population.
Asked what he thought about the idea after the panel, King said it wasn’t his decision to make. “That is up to the Legislature,” he told me. Republican state Senator Kel Seliger, who chaired the Senate redistricting committee last cycle, told Reuters in April that he expects Texas lawmakers to explore the feasibility of citizen-only maps. King hasn’t heard of any interest from his colleagues on this front, but said he believes it would be a heavy political lift. The “Texas Constitution provides for state house districts to be drawn based on total population,” King said, citing Article 3 in the state constitution. “So I’m not sure Texas state house districts could be drawn based on anything other than total population without a constitutional amendment.”
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