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."
Already, some Republican strategists are second-guessing the strategy of forcing a drawn-out preclearance trial; so far, actually, the Obama Justice Department has demonstrated surprisingly little hesitance in preclearing GOP maps in the South. And Republicans know any miscalculation that puts their map in jeopardy could be very costly: They are still haunted by memories of the court-drawn Texas congressional map that was in place for 2002, in the brief time before former Majority Leader Tom DeLay had his way with the lines. Even though Texas had become a solidly Republican state at the federal level, Democrats continued to occupy a majority of the state's House seats until 2004.
In the discovery phase of the San Antonio trial, judges have uncovered a tangled web of bombshell e-mails between GOP legislators, staffers, lawyers, and operatives arguing over which plans would raise a red flag with preclearance judges. The unsealed e-mails included plenty of plotting as to how best to draw Latino-heavy districts that would still give Republicans advantages. In a June 10 e-mail to a key Texas GOP legislative staffer, Smith attorney Eric Opiela suggested several options that would "improve CD 23's Hispanic performance while maintaining it as a Republican district." The freshman Republican in that district, Rep. Francisco (Quico) Canseco, won his seat in 2010 with Anglo votes even though most Latinos voted for his Democratic opponent.
Democrats see the e-mails as the smoking gun that proves Republicans' intent to shortchange Latino voters through cunning line-drawing. Decrying the proposed GOP changes to the 23rd District, Perales argues that Republicans "swapped out Latinos who were more likely to vote and swapped in Latinos who are less likely to vote," pointing to changes in El Paso, Eagle Pass, and San Antonio designed to help Canseco. What's more, Perales argues there is a clear "Section 2 violation in Dallas," referring to the GOP's strategy to split the area's Latino voters seven ways. Perales doesn't see her group's lawsuit as a partisan crusade but rather a fight to reflect in Congress that Latinos have accounted for most of the state's recent growth. "It's much more complicated than just R versus D."
If the San Antonio court were to step in and enact its own map to meet the state's election timetable, it would likely use a ready-made plan drawn behind closed doors with technical assistance from the staff of the Texas Legislative Council. "Did [Republicans] draw enough districts for Latinos?" wonders one council staffer who agreed to speak on the condition of anonymity, noting that nearly 90 percent of the state's population growth between 2000 and 2010 was non-Anglo but three of the four new seats would likely elect Anglo Republicans. "The court down here could turn to us, and we'd provide them with the technical aspect of drawing a map."
But what kind of map would judges want to draw? There is some debate in the legal community as to whether the panel could use the Perry-signed plan as a starting point: Some argue that the court would simply make a few "easy fixes" to the Perry-signed map based on its findings; others say they would not take the Perry-signed plan into account because it would not yet be precleared by the D.C. court. Last week, the three-judge panel dismissed a Republican motion to postpone the San Antonio trial until the D.C. court could rule on preclearance.
In 2001, when the divided state Legislature deadlocked, a three-judge panel in Tyler, Texas, prioritized incumbency and protected the state's 17 Democrats and 13 Republicans, awarding Republicans the state's two new seats as a consolation prize. This time, even if the judges in San Antonio were to draw a plan to protect as many existing districts as possible to enhance the state's seniority, they could still decide to draw as many as all four of the state's new seats for Democrats, considering the state's lopsided 23-9 Republican edge. No one claims to know what the court would have ready in its back pocket, but there are many guesses.
The three-judge panel in San Antonio is made up of one Democratic appointee and two GOP appointees. U.S. District Judge Orlando Garcia is a former Democratic state legislator who was appointed to the bench by President Clinton. U.S. Circuit Judge Jerry Smith was active in Republican campaign politics before President Reagan appointed him to his perch. The swing vote on the panel is presumed to be U.S. District Judge Xavier Rodriguez, an appointee of President George W. Bush who once lost a GOP primary for Texas Supreme Court to a more conservative candidate and is seen as a moderate.
"Our lawyers feel good about the three-judge panel in San Antonio," says the high-ranking GOP legislator, noting that one possible remedy might be for the three-judge panel to simply draw an additional Latino-heavy seat in Dallas-Fort Worth but leave the rest of the map largely intact. However, if wholesale revisions to the map are made, here are the changes that Republicans most fear, in order of most likely to least likely:
- The new GOP-dominated 33rd District, anchored by the western Fort Worth suburbs, could be converted into a Latino Democratic seat anchored by Dallas's west side. There are enough Latinos in the area to draw a district that would be more than 70 percent Latino by total population, but experts differ on whether there are enough to form an effective voting majority in a compact district.
- The newly GOP-enhanced 23rd District, which stretches from El Paso to San Antonio and is designed for Canseco, could be redrawn if courts find (as they did last decade) that the new district intentionally diminishes Latino voters' chances of electing a candidate of their choice. If it were redrawn to perform 8 or 9 points more Democratic, Canseco would likely be out of luck.
- In the Perry-signed map, Austin's Travis County is split five ways to dilute Democratic voting strength. The newly GOP-dominated 25th District, stretching from Austin to just south of Fort Worth, could be redrawn to reunite the non-Latino majority portion of Travis County into one congressional district, creating separate effective districts for Democratic incumbent Doggett and a new Latino Democrat.
- MALDEF and other Latino advocacy groups point out that the Houston area is home to more Latinos than any other metro area of the state, yet it lacks a single Latino member of Congress (the only Latino majority seat in the area elects Rep. Gene Green, an Anglo Ddemocrat). The new 36th District east of Houston could be redrawn as a new 65 percent Hispanic seat on the city's southwest side.
Several Republicans also acknowledge that it would be possible to create a third Democratic-leaning seat in the Dallas-Fort Worth area if GOP Rep. Kay Granger's 12th District were redrawn to include the most minority-heavy neighborhoods in the city. But this might get in the way of a new Latino-majority district connecting Dallas and Fort Worth.
Although Republicans might be able to live with one of these changes to satisfy the Voting Rights Act, two or more would be a serious backfire. Democrats argue a map that would truly reflect the state's partisan balance would give them closer to 15 seats than 10, and their outlook depends on whether judges recognize this in drawing the state's lines.
Republicans believe the courts are in a weaker position to intervene than they were 10 years ago, because this time, the state Legislature has actually passed a plan. Further, several note it's possible that state courts could push back the election calendar, including the March primary, to allow the federal preclearance process to work itself out. But Texas redistricting could be more like a game of hot potato: Whoever has issued the latest ruling by the time the music stops will determine the map in effect for the 2012 elections.
If Texas Republicans are stuck with a court-drawn plan they don't like for 2012, they could conceivably attempt to pass a revised map in time for the 2014 midterms, much as they did last decade. However, if President Obama wins reelection, it would still be subject to the same preclearance hurdles in a Democratic-appointed Justice Department. So what could end this game of one-upmanship once and for all? Perhaps the highest court in the land.
Any ruling by the three-judge panel of the U.S. District Court for the District of Columbia can automatically be appealed to the Supreme Court, and if Republicans can't get their map precleared by the panel, it's doubtful the high court would issue a ruling in time for the 2012 elections. But legal experts are buzzing about a high-stakes case much larger than Texas: a pending constitutional challenge to Section 5 of the Voting Rights Act, which could make the Justice Department's redistricting oversight role irrelevant beyond 2012.
CORRECTIONS: An earlier version of the story mistakenly characterized MALDEF attorney Nina Perales' objections to the Texas redistricting map. Her concerns center on the reduced voting power for Hispanics in the 23rd Congressional District. An earlier version of the story also misidentified the federal court that will rule on the redistricting map. It is the U.S. District Court for the District of Columbia.