San Antonio court files unusual supplemental order
Mon December 5, 2011 10:43 am

This is quite remarkable. The San Antonio court that drew the redistricting maps for Congress, the state House, and state Senate issued a supplemental order that amounts to a defendant's brief on its own behalf. With no prompting from a higher court, the district court launched into an explanation of what it did in the Texas redistricting case and why. I haven't spent a lot of time in courthouses, but I have never heard of judges mounting anything like this to cover a certain part of their anatomy. There's nothing wrong with what the court did, but it certainly suggests that the majority is feeling a lot of heat. (I am indebted to Michael Li's comprehensive website on redistricting for much of the information that follows.)

From txredistricting.org:

The opinion provides both additional legal reasoning and considerable detail about how the court drew districts in Dallas, Harris, Tarrant, and Nueces counties.

Responding to criticism that it improperly created additional African-American or Hispanic districts, the court explained, “the court has not intentionally created any additional minority districts.  Rather, any additional minority districts resulted from neutral districting principles and demographic changes.”

In Harris County, for example, the court explained that the combined minority population over the last decade “increased by over 700,000 while the Anglo population decreased by 82,000. Thus, over 89% of the population growth in Harris County was due to minority  growth.  Because of the significant minority growth in Harris County, it is inevitable that a neutral approach could produce an additional minority district.”

Similarly, the court noted that “the black population in Dallas County increased by more than 97,000 and the Latino population increased by more than 243,000, while the Anglo population declined by almost 200,000.”

The court majority also responded sharply to arguments by the state and dissent that it had created a ‘runaway’ plan that blindly ignored the state’s plan, explaining:

[T]he Court drew its plan for the Texas House after considering all of the parties’ proposed plans. For many districts, the Court considered the configuration in the State’s enacted plan, and for others the Court attempted to stay true to benchmark configuration, at least as much as possible.  The Court was mindful of the various legal challenges to the State’s enacted plan and attempted to avoid the same legal challenges to the court drawn map. The Court took a cautious approach to drawing the map, ensuring that the existing minority opportunity districts were preserved to avoid Section 2 and/or Section 5 violations. The tremendous population growth caused many changes in district lines. In drawing the lines, the Court tried to avoid splitting county lines unless those concerns were trumped by constitutional concerns.   See Reynolds v. Sims, 377 U.S. 533, 584 84 S.Ct. 1362 (1964) (“When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls”).  The Court ensured that all districts were contiguous and reasonably compact.  It also attempted to avoid the division of municipal boundaries and broader communities of interest. The Court tried to avoid pairing incumbents – out of 150 House districts, incumbents were paired in seven (7) districts, assuming those representatives wish to run for re-election. And finally, the Court attempted to adhere to the historical or benchmark configuration of the districts as much as possible. These neutral criteria served the Court well in drawing up a plan that may not be perfect but certainly conforms to all legal requirements.

* * * *

My comments: The district court is on solid ground when it speaks to demographics. The Legislature ignored the demographic changes that had taken place in this state during the last decade, and which made it extremely difficult to draw new maps without upsetting longstanding residential patterns. The Hispanic population, which is responsible for most of the growth in the state since 2000, is dispersed throughout metropolitan areas, making it difficult to reproduce traditional districts. I believe that the courts will eventually find that the maps drawn by the San Antonio court are legal maps that reflect the reality of the population growth in the state, and do not amount to prohibited racial gerrymandering. I have felt from the beginning of the redistricting process that the issue was whether the courts had to recognize what groups are responsible for the population growth, and whether the Legislature was obligated to acknowledge that these populations deserved representation that they had been denied in the past. Sooner or later, the Republican majority has to come to grips with the reality of the 21st century Texas. I'm betting it will be later.

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