Redistricting Trial Phase II: What Are All These Witnesses Going to Talk About?

This installment of my preview of the upcoming Perez v. Perry redistricting hearing focuses on the key Congressional districts at issue in the suit (i.e., the Congressional districts as they were drawn in 2011). Admittedly, most of you already know which districts those are, but for the sake of any redistricting newbies, let’s take a look at the heart of the controversy:

I. The Population Boom in Texas

In the 2000 Census, Texas had 20,851,820 people. In the 2010 Census, Texas boomed to 25,268,418, jumping ahead of New York to become the second-most populous state in the U.S., and gaining 4 additional seats in the U.S. House of Representatives. And of that growth, 89.2% was due to an increase in the minority population (aggregating all classes of minorities). The number of Hispanic or Latino residents increased from 6,669,666  to 9,460,921. The number of Black or African-American residents increased from 2,364,655 to 2,886,825. The number of Asian residents increased from 554,445 to 948,429. Meanwhile, the population identifying solely as white, non-Hispanic or Latino population increased from 10,933,313 to 11,397,345. (based on Census data for total population and ethnicity for Hispanic and non-Hispanic populations in Texas. For the 2000 data, see https://www.census.gov/census2000/pdf/tx_tab_1.PDF, and see http://txsdc.utsa.edu/Resources/Decennial/2010/Redistrict/pl94-171/profiles/county/table2.txt for the 2010 data.

II. The Decline in Minority-Opportunity Congressional Districts in Texas

One would assume, based on the numbers, that if nearly 90% of the population growth in Texas was attributable to increases in minority populations, that it would follow that the new Congressional districts would all be created as minority-opportunity districts (i.e., districts in which members of ethnic or racial minorities would outnumber whites). Instead, the Texas Legislature, guided by something other than common sense, made two of the four new seats safe for white Republican candidates (Congressional District 33 (CD33) and Congressional District 36 (CD36)).

Not that the Texas Congressional delegation was particularly good at representing Texas demographics before 2011, but the situation definitely got worse. While designating only 50% of the new districts as minority opportunity districts, the Texas Legislature got rid of three existing Hispanic minority opportunity districts (CD23, CD25, and CD27).

1. CD23

In 2003, Texas Republicans enacted a fairly brazen redistricting plan to wipe out remnants of the Democratic Party old guard in the Legislature. In so doing, they discriminated against Hispanic voters specifically, and were ultimately compelled to accept a court-ordered redrawing of two districts, one of which was CD23 (in West Texas). Nominally, the Hispanic voting age population was increased in this district, but voter turnout was comparatively anemic. Despite not performing well as a district that elected minority-favored candidates, the district was nonetheless understood to be a minority opportunity district.

In the 2011 plan, Hispanic voters who were more likely to vote were shifted out of the district and replaced with voting-age Hispanics who weren’t registered and didn’t vote, thereby preserving the appearance that the district was still safe for minority-favored candidates, while in fact shifting the district to the white Republican candidate.

2. CD25

CD25 has also had a checkered history – the Legislature has made repeated attempts to unseat the minority-favored candidate (in this case, the long-time Austin-based incumbent Lloyd Doggett) by dividing the tiny blue dot that is Austin into as many pieces as possible (putting the city in four, and then five different Congressional districts in an effort to “crack” Democratic Party majorities in the area). CD25 is now a rambling narrow gerrymandered mess that runs for hundreds of miles.

3. CD27

For decades, CD27 was a solidly blue Democratic safe seat, centered around the Hispanic-voter dominated cities of Corpus Christi and Brownsville. In the 2011 redistricting plan, the district was chopped up and moved north to become a Republican Party-dominated white majority district.

III. For Those of You Keeping Score

If Congressional districts were apportioned based solely on race, about 13 of the old 32 seats would have been apportioned to minority-favored candidates, and 14 seats would have to be apportioned out of the new 36 seats. As it happened, only 10 of the old seats were so apportioned (3 to African-American-favored candidates, and 7 to Hispanic and Latino-favored candidates).

That’s discriminatory, but not addressable as retrogressive (10 seats was better than what voters had been given previously). A redistricting plan isn’t retrogressive if it preserves an existing level of racial discrimination. If the state’s population hadn’t increased, Texas would not violate Section 2 of the Voting Rights Act by continuing to provide the same 10 total minority districts.

But as the number of seats increased from 32 to 36, Texas at least wasn’t legally entitled to make minority voters even worse off. They would have at least not been the author of worse discrimination than before by increasing the number of minority districts from 10 (which was three seats less than what it should have been) to 11 (which would have been three seats less than the new ideal of 14 seats out of 36).

So to recap – when Texas had 32 Congressional seats, 10 of the seats were apportioned as minority districts (3 African-American districts and 7 Hispanic or Latino districts). With 36 seats, either 10 (or 9 – there’s some disagreement among the parties about CD25 being a minority district or not) seats are now minority districts, meaning that depending on how one counts the districts, minority voters are either worse off (i.e., more discriminated against than before) by one Congressional district, or two.

IV. Remember the Real Issue

The State of Texas could admit that the 2011 redistricting plan was retrogressive, and still avoid any sanction. That’s because the 2011 plan was never actually used for an election, it was replaced with a court-drawn plan that was substantially adopted by the Texas Legislature in 2013, and that will be used for the 2014 election.

The real issue is whether the State of Texas engaged in intentional racial discrimination when it enacted the 2011 redistricting plan.

To keep track of the (surprisingly spotty and inconsistent) media coverage of the trial, and to make sense of the outcome, remember that the question isn’t so much that the 2011 redistricting plan was “bad,” but that the plaintiffs allege that the people drawing the maps made the plan intentionally bad in order to discriminate against minority voters.