On November 17, a 3-judge U.S. District Court in Texas issued proposed new legislative district boundaries. See this story. The maps are not final, and even if they were final, they would not go into effect if another 3-judge U.S. District Court in Washington, D.C., upholds the boundaries drawn by the Texas legislature earlier this year.
They offered two sets of House districts, so it appears that the judges are split. The House plan violates the Texas Constitution.
Thank you. What characteristic of the House plan violates the Texas Constitution?
All gerrymander schemes blatantly violate the Republican Form of Government language in Art. IV, Sec. 4.
NO direct/indirect monarchy/oligarchy State regimes allowed in the U.S.A.
ALL gerrymanders —
1/2 votes x 1/2 gerrymander districts = 1/4 control = OLIGARCHY — tending always to be a party leader MONARCHY — think Guv. B in CA.
Difficult ONLY for ALL 9 SCOTUS math folks ??? — or just 5 of 9 ???
There is a requirement that house districts be contained in single counties if possible (eg unless this would require more than 5% deviation from the ideal population).
If a whole number of districts can not be drawn in a county, then only one district can extend outside the county.
Strictly speaking, the constitution speaks of apportionment of representatives among counties (in the same sense that federal representatives are apportioned among the states). The only difference is that Texas permits apportionment of a single representative to a group of counties; and permits floterial districts to be shared among groups of counties. For example, if County A were entitled to 2.4 representatives, and County B were entitled to 1.6 representatives, County A would be apportioned 2 representatives, County B would be apportioned 1 representative, and together they would be apportioned one representative for their “surplus” population.
Floterial districts generally violate equal protection, since the voters in one area may dominate the election. For example in the above example, County A would have 67% of the electorate, while only providing 40% of the surplus.
Equal protection and the VRA require use of single member districts.
After the OMOV decisions in the 1960s, the legislature assumed that the only requirement for house districts was that they be contiguous and relatively equal population. But the Texas Supreme Court ruled that the Texas Constitution could and should be reconciled to the OMOV requirements.
In a case like that above, two districts would be drawn in County A, one district in County B, and a 4th district would be drawn containing population equivalent to 40% of the ideal population from County A and 60% from County B. That is, the “surplus” would be assigned to a specific area in each county rather than attributed to the counties as a whole.
Generally, there has been an exception or two. A county that is entitled to 1.8 representatives, would have to have a neighbor with population entitled to between 0.1 and 0.3 representatives. This would permit two districts with population between 95% and 105% of the ideal. In 2000, there was a situation like that where there was a small county (Chambers) that would fit. But there were two larger counties (Galveston and Jefferson) that both needed that extra population. So in that case, Galveston and Chambers formed two districts; while Orange County was split and placed with Jefferson, and another district. The split of Orange County was in violation of the Texas Constitution, but necessary to comply with equal protection (OMOV) of the US Constitution.
In 2010, Henderson County is split, because Ellis County doesn’t quite have enough population for its own district, and its neighbors have too much population.
Theoretically, Texas could have created a district with Ellis County alone. The 95% to 105% standard is not an absolute. It is generally regarded as a safe harbor, where a State wouldn’t have to justify its districts. Texas could argue that the county line rule provides an exceptional reason, but it probably isn’t worth the effort to litigate and open up all kinds of issues about how equal districts must be.
Nueces County (Corpus Christi) has had two districts plus a surplus for the past few decades, so has had two districts, and a 3rd district which included adjacent counties. As its population share has declined, more counties have been added. Currently only about 1/4 of this 3rd district is in Nueces County.
In 2010, Nueces has the population for two districts only, and two districts were drawn by the legislature.
An area between Corpus Christi and San Antonio elected a Republican in 2010, and a reasonably compact district (35) was drawn in the same area, including part of the current district that extended outside Nueces County.
What the federal judges did was to split Nueces County into three parts. A more Anglo area along the coast was added to a district extending up to Victoria. Then one of the districts that had been entirely in Nueces County had Kleberg County to the south added. Dropping Kleberg permitted a district that started in the Rio Grande Valley to go around Corpus Christi and take in parts of 35. And then the rest of the 35 was absorbed in another district to the west. All told about 15 counties had to be shifted around to make it work, simply to eliminate a district that had elected a Republican.
The argument is made that if OMOV can result in ignoring the Texas Constitution, then the VRA can also. But that presumes that a reasonably compact district can be drawn. But in this case they drew a district that does not have internal road connectivity, and even if you cheat by driving across another district it is 50 miles further than a direct route.
#4 Very thorough discussion. Just one error; neither the federal equal protection clause nor the federal 1965 VRA require single member districts in state elections. An older federal statute requires single member congressional districts, but that has no application to state elections. Of course, if states choose single member districts (as most do for state-wide representative bodies), then the equal protection clause requires that they be equally apportioned.
In a REAL Democracy a legislative body exists ONLY because ALL of the Electors-Voters can NOT generally assemble in person to vote on bills — actual ONE person, ONE vote in making laws/ordinances.
A Fed census (instantly obsolete) has ZERO to do with having a REAL Democracy inside any State – State/local legislative bodies.
What State gained/lost the highest percentage of folks in the 1790-2010 censuses — to say nothing about local govts ???
Detroit, MI in 2000 to 2010 lost a mere 25 (repeat 25) percent of its alleged population – kept the same gerrymander districts in the 2002-2010 elections.
SCOTUS has been brain dead since the 1964 gerrymander cases — due in part to lots of MORON law school amicus profs filing JUNK amicus briefs in gerrymander cases.
P.R. and nonpartisan App.V.
Also of course – NO mention of any subparts of any State in the U.S.A. Constitution — counties, cities, townships, whatever.
Counties were formed to enforce State LAWS – i.e. county sheriffs/posses and courts at the old county seat [of govt] — x square miles — such that folks could ride a horse and see the action at the court house — in slower moving older times.
#5 See White v Regester in which the SCOTUS upheld a district court ruling that at-large elections for the Texas House from Dallas and Bexar (San Antonio) counties were unconstitutional because they denied equal protection to racial minorities. Earlier SCOTUS rulings that had upheld challenges to multi-member districts per se, noted that they might come to a different conclusion if they served to disenfranchise racial or political minorities.
In the same decision the SCOTUS overturned the district court’s ruling that a total deviation of 9.9% was unconstitutional. Thus the beginning of the establishment of the 10% safe harbor for legislative districts.
Later the same district court overturned 8 of the 9 remaining multi-member districts, and in 1975 the legislature drew a map that had 150 single-member districts. The Texas Constitution requires that multi-county House districts be single member. So a county would have to have a substantial population (340,000 plus) in order to have enough population for a two-member multi-member district. Any county with that much population is likely to have significant concentrations of minorities. The few instances where it might not, would still have to be proven to have no discriminatory intent or effect under the VRA.
#8. White v. Regester’s invalidation of multimember districts in that instance was premised on a finding that they were being used to suppress minority representation. The Court stated, “Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups.” The same goes for single-member districts that are being used in this fashion. If racially discriminatory they violate the equal protection clause, too. But the equal protection clause allows both types, so long as they are not intended to discriminate based on race; neither it nor the VRA prohibit multi-member districts that are racially neutral. See also Thornburgh v. Gingles (holding that VRA does not prohibit multi-member districts).
#9 White v Regester was one of four suits that were combined. The original case was based on Dallas and Bexar counties where there were 17 and 10 member at large districts (Harris had single member districts by then). When the district court had enjoined their use, it had been appealed (as Graves v Barnes), to the SCOTUS which refused to stay the injunction. If you read part (c) of the district court’s finding in the SCOTUS decision, you will find 3 earlier decisions with regard to at large districts. The SCOTUS was begging for someone to bring a challenge to at large districts based on racial or political minorities (ie they couldn’t get 5 votes for a more general ruling).
Later, the district court ruled that the at large districts in 8 of the 9 other counties that had them were also unconstitutional. So in Texas, there is an over 90% chance that an at large district for the Texas House would be unconstitutional.
In Texas, this is particularly significant because the constitution calls for an apportionment of representatives among the counties (not creation of House districts), but now effective requires drawing/apportionment of districts within counties.
#10. It is tough in Texas to avoid claims of racial discrimination. I just don’t want the rest of the country to think that multi-member districts are illegal. They clearly are not. Your description of the problems in Texas is excellent.
How many at large district schemes still survive in ALL of the States ??? N-S-E-W ???
P.R. and App.V.
#12 (I assume you know the difference between multi-member and at-large).
10 states have multi-member districts for the legislature. In 6 of them, AZ, ID, NJ, ND, SD, and WA, house members are elected from 2-member districts. In some cases, these elections are by position.
Only MD, NH, VT, and WV use combinations of multi-member and single-member districts.
I’ll let you classify them as to N-S-E-W.