Court Quiet on Redistricting Case

With new candidates announcing bids for state office almost daily and longtime legislators announcing they will not be seeking re-election, Texas is already gearing up for the 2016 primary election. Although there has been no news from the U.S. District Court in San Antonio in an ongoing case involving the constitutionality of district lines, a decision in the next year could delay the election or require a special legislative session.  

Perez v. Perry

In 2011, State Rep. Harold Dutton Jr., D-Houston, and Bexar County Resident Shannon Perez sued the top Texas legislators at the time – Gov. Rick Perry, Lt. Gov. David Dewhurst, Speaker of the House Joe Straus and Texas Secretary of State Hope Andrade. In their lawsuit, Dutton and Perez said the district lines drawn after the publication of the 2010 Census included dramatic population disparities and were therefore unconstitutional. 

The U.S. District Court for the Western District of Texas, San Antonio Division, first heard the case in January 2012, and they ordered a new interim plan to be drawn for the 2012 elections. The state later requested the case be dismissed, but the court declined their request. Since then, the court has made little noise regarding the progress of the case. It has remained silent since 2014, when it last heard evidence.

Michael Li, redistricting counsel at the Brennan Center for Justice at the New York University School of Law, said it is unclear whether the court will issue a decision before the 2016 primary election filing period begins in November. 

“It literally could come down any day,” Li said. “It’s been a year, they’ve had a lot of time to look at this… I’m not sure if there is a window and then another window, but a ruling could come down any day — or it could be next year.” 

Why has no ruling been issued? 

Li said he was surprised the court has yet to issue a ruling, although he said there has been speculation the court is waiting for the Supreme Court to resolve other redistricting cases before ruling. 

"That is a possible reason why they might delay, but those decisions are unlikely to come down until the spring, so that would be a pretty long delay,” Li said “But all of that is just speculation because the court has stayed very silent on this. It’s a little mysterious.”

Which way is the court leaning? 

Although he acknowledged it was challenging to predict court decisions, Li said some of the judges seemed “skeptical” of what happened. 

"When Texas drew the maps in 2011, the Legislature was pretty aggressive and they dried to draw in a Republican supermajority, but the problem is that it’s hard, even where people live in Texas, to draw a super majority without disadvantaging African Americans and Hispanics,” Li said. “I think the court, at least two of the judges on there, are fairly skeptical of what happened. Whether they decide that it results in a legal violation or not — it’s hard to say.” 

What if the court rules the redistricting was unconstitutional? 

If the court takes issue with the maps, Li said they would likely give the Legislature the opportunity to redraw the district lines — which could delay the primary election, time permitting. 

“They might say the Legislature has 60 days to fix the maps, then it would be up to Governor Abbott to see if he would want to call a special session and give the Legislature that opportunity,” Li said. 

Li said there are a number of other options the court could pursue rather than a special session, including asking political parties to submit proposals or selecting a “special master” to draw maps. 

If the court finds the district lines were intentionally discriminatory, Li said the court could order federal supervision for the state, meaning any election law changes would have to be approved by the justice department or by the court before they can go into effect. 

"What makes this case a little bit more complicated than your normal case is that it is possible the court could rule on the 2011 claims and then say now we’re going to start the process of putting Texas back under federal supervision and then we’ll look at the 2013 claims,” Li said. "The standards are different if you’re under federal supervision than if you’re not. They might use the 2011 claims to put Texas back under federal supervision and then look at the 2013 maps, that is a possibility."