A congressional redistricting case could offer Texas Democrats a glimmer of hope for making gains in the Republican-dominated state if a new map takes effect shortly before the 2018 midterm elections.
Revised congressional boundaries could create opportunities for Democrats looking to win back the House — but also challenges if they must quickly find formidable candidates in newly competitive races. And if a court redraws the state’s map, the GOP-led state government would lose control of a tool that lawmakers in Texas and across the country have relied on to stay in power.
“As usual, it’s an interesting time in Texas politics where we don’t really know what’s going to happen,” said Colin Strother, a Democratic consultant in the Lone Star State.
A panel of three federal judges in Texas concluded in March that three congressional districts in the 2011 congressional map violated the Voting Rights Act by diluting opportunities for minority communities to select candidates of their choice.
But the 2011 map is no longer in effect, since the state adopted a new map in 2013 amid ongoing litigation. The new map is also discriminatory, the plaintiffs allege, since some of the original boundaries from 2011 are still in place. The state government says the 2013 map is legal, since it was approved by the courts.
Lawyers in the case face a Tuesday deadline to explain how a recent Supreme Court ruling would affect their arguments. The high court ruled in May that North Carolina state lawmakers illegally used race to alter the lines of two congressional districts. Lawyers are also preparing for a July hearing on the current congressional map.
With the Texas case moving forward, the boundaries of the congressional districts remain in question with the 2018 elections less than 18 months away. The Lone Star State’s primary filing deadline is in six months.
So, incumbent lawmakers and potential challengers are watching to see where the districts’ boundaries will fall, and weighing how that could affect the outcomes in next year’s midterms.
Eyes on 2018
One of the districts at the center of the Texas case is the 23rd District, the largest in the state, spanning much of the state’s border with Mexico. It’s home to one of seven races currently rated Toss-up by Inside Elections with Nathan L. Gonzales.
The seat, represented by GOP Rep. Will Hurd, is a top Democratic target in 2018. Hurd was first elected in 2014 by a 2-point margin. He narrowly won re-election last year by 1 point while Hillary Clinton was carrying the district by 3 points, according to calculations by Daily Kos Elections.
The federal judges invalidated the 2011 lines for this district, writing in their ruling that its configuration “denied Latino voters equal opportunity and had the intent and effect of diluting Latino voter opportunity.”
Michael Li, senior counsel at the Brennan Center for Justice, expects the district to be redrawn to include more Latino voters.
“That probably is a Latino-controlled seat, which would be a Democratic-controlled seat,” Li said.
National Democrats have heard from candidates interested in Hurd’s seat. And while they expect strong challengers to emerge, none have so far.
“Everyone’s kind of keeping their powder dry until it makes a little more sense to announce,” said Strother, the Democratic consultant.
The court also ruled two other districts were unlawful: the 35th District, which stretches from San Antonio to Austin, and is represented by Democrat Lloyd Doggett; and the 27th District along Texas’ central Gulf Coast, represented by Republican Blake Farenthold.
Li speculated that, if the court rules the current map is also invalid, a new congressional map could lead to two or three more Democratic seats. Republicans currently outnumber Democrats, 25 to 11, in the Texas delegation.
But one GOP consultant focused on Texas did not believe a new map would result in a significant shift against the Republicans.
“There’s just not enough Democrats to roll around the state to really have massive amounts of change,” the consultant said. “You may lose one seat.”
The consultant also said the uncertainty would not have an effect on congressional campaigns for incumbents, since they are accustomed to the constant legal battles over the congressional lines.
But Strother said Democrats had to be prepared just in case.
“The nightmare scenario for Democrats is we don’t have people preparing for the emergency that this district or that district suddenly gets great for Democrats … and it’s too late,” he said.
Strother said he didn’t see many Democrats preparing for races just yet, but pointed to Joe Kopser in the 21st District as someone jumping in early in a race rated Solid Republican by Inside Elections.
Kopser, an Army veteran and technology businessman, recently announced that he would challenge GOP Rep. Lamar Smith in the central Texas district. It is possible a new congressional map could have a ripple effect and alter the lines of Smith’s district.
While the district is not on the Democratic Congressional Campaign Committee’s list of 2018 targets, the committee is waiting to see how the redistricting case pans out.
‘It never seems to end’
As campaigns watch the courtroom, the legal battle in this six-year case moves forward, with an impending Tuesday deadline for the lawyers to describe how the North Carolina case affects their arguments.
Nina Perales, a lawyer for the plaintiffs, said it is not unusual for the judges to make that request following a high court ruling.
“I don’t think that you can read any special significance into the fact that the court has asked us to talk about the Supreme Court,” said Perales, who is with the Mexican American Legal Defense and Educational Fund.
Perales said it was not clear how the ruling would affect the Texas case. In North Carolina, the case centered on “packing” claims, where African-American voters were packed into a few congressional districts to dilute their influence in other districts.
She noted that the claims in the Lone Star State mainly centered on allegations that the districts were drawn on the basis of race. The Texas case includes “cracking” claims, meaning minority communities were fractured among districts so there were not enough minority voters to elect a candidate of their choice.
But Li, of the Brennan Center, said the North Carolina ruling could affect the Texas case since the Supreme Court advocated a “holistic approach” to examining racial gerrymandering. That means expanding evidence beyond empirical data and looking at the broader environment surrounding the state’s redistricting process.
Li also said the high court ruling could cut into the defense’s argument that the congressional boundaries are only based on partisanship, since the court noted that using race for political gain is not permissible.
The state government wrote in a May court filing that it does not plan to hold a special session to preemptively redraw the map, since it believes the current map is legal. If the state legislature declines to draw the map itself, the court could develop new lines.
That possibility is causing some consternation among Texas Republicans. The Texas Tribune reported that some GOP members of the congressional delegation are urging the governor to call a special session, over concerns that a court-drawn map would be less beneficial for Republicans.
Li noted that the parties involved have indicated that with the 2018 elections looming, questions on the current maps need to be resolved by early fall.
But, even if the current map is addressed, legal challenges could continue.
“I’ve been going through redistricting, it seems like all of my political life,” said Democratic Rep. Eddie Bernice Johnson of the Dallas-based 30th District. “It never seems to end.”
One outstanding question is whether Texas should be placed back under the Voting Rights Act’s preclearance procedure. In 2013, the Supreme Court struck down the VRA provision that required certain states with a history of discrimination to have their voting laws preapproved before taking effect.
“Without preclearance the burden is on the plaintiffs to rush into court and prove their case in order to get a map blocked,” Li said. With preclearance, the burden is on the state to prove that a map is not discriminatory.
So the plaintiffs have asked that the court place Texas back under the VRA’s preclearance procedure, which Perales said could pre-empt legal challenges in the future. The court has yet to rule on that question.