In a changing Texas, Republicans will begin redistricting with more freedom to draw their maps - The Texas Tribune

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The 2020 census captured a Texas that does not exist in its halls of power: a diverse state that is growing almost exclusively because of people of color and where the Hispanic and white populations are nearly equal in size.

But when the Texas Legislature convenes Monday to do the work of incorporating a decade’s worth of population growth into new political maps, the Republicans in charge — nearly all of whom are white — will have a freer hand to cement their power and try to shield themselves from the change that growth represents.

The 2021 redistricting cycle will mark the first time in nearly half a century that a Legislature with a lengthy record of discriminating against voters of color will be able to redraw political districts without federal oversight designed to keep harmful maps from immediately going into effect.

And now, once those maps are enacted, the voters of color and civil rights groups that for decades have fought discrimination in the courts may face a federal judiciary less willing to doubt lawmakers’ partisan motivations — even if they come at the expense of Hispanic and Black Texans.

“I hate to be an alarmist. I want to look for the silver lining, but I don’t see one,” said Jose Garza, a veteran civil rights attorney who has represented the Texas House’s Mexican American Legislative Caucus for a decade. ”I think that this is a time of great opportunity for the Republicans.”

The Legislature’s work during this month’s special legislative session will include the complex and contentious process of redrawing maps for Congress, the Texas House, the Texas Senate and the State Board of Education to evenly distribute the state’s fast-growing population. On the congressional front, lawmakers must also reconfigure the map to incorporate the two additional districts the state earned because of its growth.

Like most other states, Texas leaves this task to the same lawmakers whose individual electoral survival and collective political dominance depend on how district boundaries are set up.

Former President Donald Trump claimed 52% of the vote in last year’s election, but Republicans hold 64% of the state’s seats in Congress, 58% of seats in the Texas Senate and 55% of seats in the Texas House. The GOP, however, is facing demographic changes that fundamentally work against the party’s efforts to maintain or even bolster its majorities in the statehouse and in the state’s congressional delegation.

Republicans disproportionately rely on white voters to elect them, but people of color were behind 95% of the state’s population growth since 2010. Hispanic Texans alone were responsible for half of that increase. And the 2020 census found that the Hispanic population — 39.3% of the total population — was nearly equal in size to the non-Hispanic white population, which makes up 39.8%.

What’s more, population growth over the last decade was largely concentrated in areas where Republicans are faltering. The state’s suburbs, many of which have turned blue in recent years or are trending in that direction, grew the fastest. Meanwhile, the state’s five most populous counties — Harris, Dallas, Bexar, Travis and Tarrant — became home to roughly 44% of the state’s 4 million new residents. Harris, Dallas, Bexar and Travis are decisively blue counties. Tarrant, which is historically red but voted Democratic at the top of the ticket in 2018 and 2020, actually saw its white population decrease by more than 30,000 in the last decade.

Despite the challenging demographic landscape, the U.S. Supreme Court paved an easier road to Republican dominance with two highly consequential rulings in the last decade.

In 2013, the high court scrapped the federal Voting Rights Act’s long-standing safeguard, known as preclearance, that prevented states with discriminatory track records like Texas from enacting new voting rules or maps without first getting federal approval to ensure that they didn’t pull back on the voting rights of people of color. Years later, the court also ruled that federal judges cannot limit partisan gerrymandering, giving lawmakers even more freedom to justify extreme revisions to their maps by citing political motives.

“They’ve got a shield that they can discriminate against [people of color] and say it’s all about partisanship and there’s not going to be any review from Washington, D.C., on what they do,” Garza said. “They have this great strength because they control all the seats of power and don’t have [preclearance], but they also have this sense of desperation because so many of their districts are severely underpopulated. I think that’s a formula for disaster for the minority community and for Democrats.”

During the last redistricting cycle, Republicans defended their maps by arguing that they were drawn based on partisan advantage, rather than race. But federal judges eventually ruled that lawmakers intentionally discriminated against Hispanic and Black voters by giving them less say in choosing who represents them in the Texas House and in Congress. In districts where lawmakers supposedly used race in the name of complying with the Voting Rights Act, which is allowed, the judges found they instead “turned the VRA on its head” by unnecessarily crowding Hispanic voters into certain districts.

For decades and in that round of mapmaking, preclearance — which was granted by the U.S. Department of Justice or a Washington federal court — served as a critical safeguard to political redistricting in a state with a tradition of suppressing Hispanic and Black voters by blocking the Legislature’s initial maps from being used.

Under that regime, the Department of Justice lodged objections to Texas’ maps at least eight times in less than three decades. In total, the department objected to 207 voting changes made in Texas in that time period — more than in any other state subject to preclearance.

The last time a Washington federal court refused to clear the Legislature’s maps in 2012, it noted the case against the state included “more evidence of discriminatory intent than we have space, or need, to address here.”

Republicans in charge of the process in the House and Senate, whose offices did not respond to interview requests for this article, have so far said they are taking a transparent and cordial approach to what’s often a contentious process.

“As you know, the legal issues around redistricting are complex and continually evolving,” state Sen. Joan Huffman recently told other senators on the chamber’s redistricting committee, which she chairs. “Please know that I continue to be committed to a fair, transparent and legal process, and I encourage participation and input from each of you as we work together toward this goal.”

When he was appointed to chair the House’s committee, state Rep. Todd Hunter acknowledged in a statement that redistricting “is never easy” but promised he was “fully committed to a fair process.”

But since the enactment of the Voting Rights Act in 1965, Texas has not made it through a single decade without a federal court ruling that it violated that federal law or the U.S. Constitution and ordering it to correct its legal mistakes.

“Certainly is it the case that the Legislature has demonstrated it has zero institutional memory when it comes to redistricting — and that could be a willful ignorance on its part,” said Nina Perales, the vice president of litigation at the Mexican American Legal Defense and Educational Fund, who has challenged the state’s maps in the last two redistricting cycles. “If the past can tell us anything about the future, it would be that Texas turns a blind eye to the court rulings of the past that found discrimination.”

Though lawmakers this year will be deciphering how the future of representation and political control will shape up, the echoes of legislative work from a decade ago are ringing loudly. Ten years ago, Republicans also controlled the entire process, had a roster of nearly all white lawmakers and were confronting census numbers that showed people of color had accounted for nearly all of the state’s population gains.

At a committee hearing in 2011, a lawmaker asked Perales what lawmakers should keep in mind in that year’s redistricting effort given the state’s previous missteps. The lesson, she told them at the time, is that we should not repeat past mistakes.

Those dynamics are reverberating so profoundly that Perales unintentionally quoted herself in imploring today’s lawmakers to not extend the state’s long-running practice of violating the voting rights of people of color in redistricting.

“Redistricting plans should avoid the mistakes of the past,” Perales told the Texas Senate’s committee on redistricting in a public hearing last week.

As in 2011, this year’s deliberations will be backdropped by months of debates over whether the Legislature is sufficiently acknowledging the different lived realities of Texans based on their race.

A decade ago, lawmakers were fighting over Republican legislation to allow law enforcement to ask about the immigration status of people they detained, as well as a new stringent voter ID law that was later found to have discriminated against Hispanic and Black voters. Democrats repeatedly warned those proposals would disproportionately burden people of color; Republicans dismissed those concerns.

This spring, the regular legislative session was dominated by clashes over legislation to restrict how the legacy of racism can be taught in Texas schools, plus sweeping legislation to create new restrictions on voting that Democrats said would raise new barriers for marginalized voters, especially voters of color.

Debates on the former featured tense exchanges between Democrats of color and white Republicans who appeared to reject the idea that some of the country’s founding principles, including the three-fifths clause of the U.S. Constitution, were racist, instead describing slavery as a “deviation” from those principles.

At one point, House Speaker Dade Phelan asked lawmakers to avoid even using the word “racism” during a floor debate on the voting bill.

“The level of anti-minority legislation that came out of this session of the Legislature, in my mind, far exceeds anything we’ve seen in recent memory,” said Gary Bledsoe, the longtime president of the Texas chapter of the NAACP, which has previously challenged the state’s redistricting work. “This session is a throwback. It seems like the idea of turning back the hands of time to go back to another era seems to be motivating individuals.”

With redistricting up next on the docket, Bledsoe said he anticipated for the state’s new maps to be built on the suppressed votes he believes will result from the state’s new voting restrictions.

“All of this works together,” Bledsoe said. “All that fits hand in hand so when you come out with marginal seats or seats that may be more at risk because you’re trying to take too many seats, that gives you your chance.”

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