In a state that brags about its independence and bristles at any hint of federal intervention, Texas’s Republican leadership found itself in a tricky position on January 9. That was when Attorney General Greg Abbott finally had his day in court—the U.S. Supreme Court, that is, which had agreed to hear oral arguments regarding the latest round of Texas redistricting maps. At issue were interim maps for the state’s congressional and legislative districts that had been created by a federal court in San Antonio last November. These maps had superseded the ones the Legislature had drawn during the 2011 regular and special sessions, raising Abbott’s ire. In a bitter statement, he sought relief from one court to correct what he blasted as “judicial activism at its worst” by another.
Texas is no stranger to the high court when it comes to redistricting: six years ago the justices rejected the boundaries of South Texas’s Twenty-third Congressional District. But the current round of litigation is unlike any other the state has seen. The trials began in San Antonio last September, when a three-judge panel heard arguments from a coalition of civil rights groups that claimed the Legislature’s original maps failed to produce an appropriate number of minority “opportunity districts,” even though the Hispanic population had exploded by 41.8 percent over the previous decade—and helped give Texas four new congressional seats. As if there weren’t enough men and women in black robes already involved in the process, in November a federal district court for the District of Columbia said “the State of Texas used an improper standard” to account for minority voters. It scheduled a trial on January 17 to determine if the lines for the maps satisfied the requirements of Section 5 of the Voting Rights Act of 1965, perhaps the most important achievement of another Texas politician, President Lyndon B. Johnson.
This sequence of judicial maneuvering has turned the 2012 election schedule on its head. To accommodate the legal limbo, the primaries were moved from March 6 to April 3, and there’s no guarantee that they won’t be changed again depending on the Supreme Court’s ruling. As of press time, Texas had no maps in effect, no districts for candidates to run in, and no voters with the slightest idea of what was happening. Only one thing was certain: if lawmakers drew maps for a living, they would all be out of work.
All of which confirms what observers of the Capitol have believed for a long time. Redistricting is supposed to be the process that guarantees the sacrosanct principle of “one man, one vote” by creating fair, unbiased maps that account for changes in population according to the decennial census. Instead, it has become a partisan misadventure in creative cartography by which the ruling party does its best to stick it to the other guys.
This has held true no matter who is in charge. When the Democrats controlled the Legislature during the redistricting cycles of the seventies, eighties, and nineties, their maps always ended up in the courts too. When the House and the Senate were divided during the 2001 session, the maps ended up in front of a judge. Then came Tom DeLay in 2003, who jumped at the opportunity to expand his party’s influence in Congress after Republicans took control of both chambers of the Legislature. He orchestrated a bruising mid-census redistricting cycle, prompting an embarrassing episode in which Democrats fled the state to derail the process (they failed). It’s no wonder that each cycle brings about hard feelings, bloody partisan warfare, and millions of dollars spent on litigation.
“We now have a history in Texas, regardless of which group is in power, wherein the majority party draws lines in a way to diminish the power of the minority party,” says state senator Jeff Wentworth. The San Antonio Republican, who has served in the Senate since 1993, was stung by his own party’s redistricting efforts in 2001. After each U.S. census, the Legislature draws new maps for Congress, the Texas House and Senate, and the State Board of Education, and redistricting bills follow the same path as any other bill during a session. But the process gets more complicated if lawmakers can’t agree on a map. Congressional and SBOE districts are then drawn by the courts, but the state House and Senate maps fall under the authority of the five-member Legislative Redistricting Board, which is made up of the lieutenant governor, the Speaker of the House, the attorney general, the comptroller, and the land commissioner. During the 2001 session, when Wentworth served as the chair of the Senate Committee on Redistricting, the chamber couldn’t agree on a new map. That was fine by many Republicans, since they had a majority on the LRB and could expect favorable treatment. But instead of drawing maps that Wentworth believed were fair to both parties, the LRB angered some Republicans by carving up the boundaries of their districts to help ensure additional seats in the next election. Wentworth voiced his complaints, but to no avail. He claims he was told that major donors to the party had put pressure on the LRB to expand Republican influence.
Wentworth knew there had to be a better way. He had sponsored bills on redistricting in previous sessions that would have created an independent, bipartisan commission to remove the Legislature from the process, and the plan passed the Senate in 2005, 2007, and 2011. But it died each time in the House. “I remember the 2007 session particularly well,” Wentworth says. “The House wouldn’t vote the bill out of committee, so I went to the chair, Republican Joe Crabb, and asked him why. He told me that the Speaker wouldn’t allow it.” The Speaker of the House at that time was Tom Craddick, and after a terse conversation with him, Wentworth turned to Craddick’s lieutenants, who not only supported the plan but also signed a letter urging that it be passed. But Craddick didn’t care what the members of the House wanted. He wasn’t about to give up the power to redraw the maps for the next census.
Now that the 2011 cycle has demonstrated yet again how flawed the system is, it’s time for the Legislature to think about more than its own self-interest and pass Wentworth’s bill. His plan is simple enough to allow transparency, but it also protects the basic interests of both parties. First, Wentworth wants to keep the Legislature in the loop by allowing both the Republicans and Democrats in the Senate to choose two individuals to serve on the commission; the House would do the same. “Now, I know that there won’t be a scintilla of doubt about the party loyalties of those eight picks,” Wentworth says. “The Democrats are going to tap George Shipley. And we’re going to pick people like Karl Rove.” But to temper the partisan tone, those eight members can’t be elected officials, party leaders, or registered lobbyists, and they would have to select an independent, non-voting chair to direct the proceedings.
Then the commission would set to work by drawing its map and passing it by a simple majority, which would require the members to come to the table ready to compromise. And if the group deadlocked, then the courts would take over, an option that neither party would want because it would remove any level of control. “The proof is in the pudding,” Wentworth says. “I’ve studied the thirteen states that have adopted some alternative form of redistricting, and about half the time, the NAACP, MALDEF, LULAC, and the leadership of both parties agree on the outcome. More important, the legislature doesn’t lose time and effort and can focus on issues that really matter.”
Of course, no one can fully remove politics from the political process. Just last November, Arizona’s Republican governor, Jan Brewer, complained that the chairwoman of her state’s independent redistricting commission had drawn maps that favored Democrats. The chairwoman was subsequently removed by the Arizona Senate, prompting a fresh round of legal battles about whether Republicans had interfered in the process.
And even Democrats in Texas who agree with Wentworth in principle are quick to point out that his plan applies only to congressional districts, suggesting that lawmakers in both parties are loath to surrender the power to control their own destiny. “Some people say, ‘Oh, Wentworth is being hypocritical,’ ” the senator says. “ ‘He should have included the legislative boundaries.’ Well, you know what? They are right, and I would have if it were possible.” The reason Wentworth focused only on congressional districts is more practical than political. Unlike congressional lines, the Texas constitution specifically requires the Legislature to handle the boundaries for the House and Senate. To pass a joint resolution that would amend the constitution, Wentworth would need a two-thirds vote in both chambers. And given the fate of his plan so far—he notes that every time his bill comes up for a public hearing, both parties testify against it—that’s unlikely to happen. “It’s not a hill that I can climb,” he says.
But even the creation of a commission to handle congressional districts would be a step in the right direction. The state has relied before on independent panels to address major problems, though they have typically been created by the governor. John Connally did it in 1965, when he asked Leon Jaworski to study public school reform; Mark White appointed Ross Perot to tackle the same subject in 1984. Surely the culture in Austin has not become so poisoned that we cannot find a group of statesmen hiding among our politicians. One of the basic responsibilities of our lawmakers is to guarantee fair redistricting to ensure the integrity of our elections. If we can’t rise to that challenge, well, maybe we don’t deserve our democracy in the first place.