If House Democrats unexpectedly end up winning a jackpot of new seats in ruby red Texas, they might have some unlikely people to thank: the Republican-dominated Texas Legislature, GOP Rep. Joe Barton, and, oddly enough, newly announced GOP presidential candidate Rick Perry.
Several Republicans are expressing increasing nervousness that Texas could be the scene of the biggest redistricting backfire of the cycle, and that Barton, Texas Gov. Perry, and others could be to blame for playing roulette with both a hyperaggressive map and an untested legal strategy. The GOP's worst nightmare? A federal court in San Antonio could ignore the map that Democrats deride as the “Perrymander” and draw a new plan de novo, replacing Republicans’ plans for a congressional delegation divided 26-10 in their favor with a map that potentially could cost the GOP a disastrous three, four, or even five seats. More optimistic Republicans say that minor changes are more likely.
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Both parties agree that the real fight over the lines in Texas began, rather than ended, with Perry's signature on the congressional redistricting plan in July. But the story began months ago, when the state’s Republican members tapped GOP Rep. Lamar Smith to be their point man on redistricting. Smith, along with most of the delegation, advised the Legislature to adopt a more cautious plan that divided the state’s four new seats evenly between Republicans and Latino Democrats, so as to increase the odds the map would stand up to a legal challenge and win necessary "preclearance" at the federal level. (Texas, like many other states with a history of racial discrimination at the polls, must have all election-law changes--including redistricting--reviewed under the Voting Rights Act.) Many Republican incumbents who would benefit from shedding Latino voters saw Smith's strategy as a win-win.
Barton and Perry, however, had different ideas. Barton, apoplectic that Republicans would consider drawing any new seats for Democrats, savaged the idea of a new Latino majority seat in the Dallas-Fort Worth area. Instead, he insisted on a more aggressive plan that would draw an extra GOP seat there even though there are now more Latinos in Dallas-Fort Worth than in the Rio Grande Valley. And to get around the anticipated strict scrutiny from the Obama administration's Justice Department, Perry and others advocated for bypassing the Justice Department and seeking preclearance in a trial at the District of Columbia Circuit Court of Appeals.
In July, the Legislature passed the aggressive 26-10 map Barton and Perry wanted, prompting an outcry from Latino groups. "What's really shocking is we got four new congressional districts, and there's no addition of Latino opportunity districts," fumes Nina Perales, lead attorney for the Mexican-American Legal Defense and Education Fund. (Although there is one new Latino district stretching from Austin to San Antonio, Perales argues Republicans diminished effectiveness of the Latino voting majority in a nearby district stretching from San Antonio to El Paso.)
Now, the GOP map is under attack on two fronts. In San Antonio, a three-judge federal panel has consolidated a series of Latino and Democratic-backed lawsuits against the map and scheduled the trial to begin on September 6. In Washington, lawyers representing the GOP state attorney general are simultaneously seeking preclearance for the map from a separate three-judge federal appeals panel. But a time bomb is ticking: if the D.C. court denies preclearance or, more likely, fails to rule on the issue by the November opening of Texas's candidate filing period, the San Antonio panel could draw its own plan for 2012. "The state is running a very serious risk that there will be no precleared plan by the time the court decides a plan needs to be in place," Perales argues.
"It's a legitimate concern," admits a high-ranking GOP state legislator close to the remapping process. The legislator bemoans that Republicans were in a box from the start, because there are no clear guidelines on what kind of plan would pass muster with the courts and few precedents as to which route would provide fewer obstacles to preclearance.
The calendar may be conspiring against Republicans: A new military-ballot law in Texas recently pushed the opening of the state's candidate filing period earlier than ever. And Republicans' decision to bypass the Obama Justice Department means that there will be a lengthy trial to determine preclearance in the D.C. court. Legal experts say this trial could conceivably drag on into December, hurting the chances that the GOP map will even get a verdict in time. And if the D.C. court finds any flaws in the map, there won't be any time left for the GOP Legislature to tweak the map and resubmit it. "If the map fails to win preclearance," says one GOP redistricting veteran, "it's like it's never existed in the eyes of the law."