Texas and eight other states will have their freest hand in decades to draw congressional and legislative maps this cycle, no longer required to submit their maps for federal review because of repeated discrimination claims.
Advocates worry, however, that the late delivery of census redistricting data may hamper their efforts to serve as watchdogs on the process and cry foul if mapmakers stray into racial gerrymandering.
Texas and other states no longer have to run their legislative maps past the Justice Department under the preclearance provision of the Voting Rights Act, after a Supreme Court decision found the process unconstitutional.
But with last week's announcement that the Census Bureau will not be able to deliver until September data critical for political mapmaking, states have been put under tight deadlines to draw the maps in time for 2022 congressional elections — and challengers on even tighter timeframes to raise disputes in court.
Stanford University Law Professor Nate Persily said it would be difficult for plaintiffs to make cases under the Voting Rights Act or other federal claims. Judges would have to take an active role to handle the anticipated lawsuits in time, and even then it would be difficult to get cases through the system.
"You could do it, it is just very rough. It is going to require a lot of resources in a very short time," Persily said. "The late arriving census data should not be an excuse to rush through otherwise illegal plans, and I worry that is going to be the nature of the argument from states."
Census data projects that Texas, Florida and North Carolina will be among states to pick up seats following the release of 2020 census results, and Republicans control the line-drawing process in those states.
Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, said that parties typically want to maximize their political gains with the new seats, but that can be difficult in Texas because of voting patterns there.
"If you're a white Texan, there is a very very good chance you are Republican, and if you're a Black or Latino Texan there's a very, very good chance you are a Democrat… So even when the legislature acts in ostensibly partisan terms, it can have Voting Rights Act implications in the state of Texas," Saenz said.
Reflecting national trends, most of that state's growth has come in diversifying suburbs and advocates expect new maps will reflect that increasing diversity.
Saenz does not count on it, though. Texas has faced litigation over the Voting Rights Act every decade, and "right now I wouldn't anticipate anything different. But now there is going to be very, very little time for a court to intervene."
Texas state Sen. Cesar Blanco said the governor will likely call a 30-day special legislative session to draw the new maps in September. He pointed out that in the last cycle a decade ago, the legislature had months to work with the data and still drew a map ruled in violation of the Voting Rights Act.
"Time and again, courts have found that the Texas Legislature intentionally discriminated against African Americans, that it intentionally discriminated against Hispanics," Blanco said.
In addition to Texas, other states previously under preclearance rules were Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina and Virginia. Counties and townships in six other states also fell under the preclearance regime.
Fair Lines America Executive Director Adam Kincaid pushed back on the idea that Republicans would take advantage of the short timeframe to overstep.
"We're not telling anybody to overreach, because it may only be a one-cycle map. I know Democrats are talking about that in other places. It's not the strategy. We've told everyone: Be smart, draw 10-year maps," Kincaid told reporters on a call Thursday.
Adam Podowitz-Thomas, legal advisor of the Princeton Gerrymandering Project, said the amount of attention now devoted to redistricting could curb the worst intentions of state mapmakers, but that may not go out on a limb to draw new minority "opportunity districts" under the Voting Rights Act. The law mandates that states include majority-minority congressional districts with the opportunity to elect their own representatives.
"I don't necessarily expect to see, for example, a regression in the number of opportunity districts in southern states," Podowitz-Thomas said. "I do, however, think it is likely that many states will attempt to not have to draw additional opportunity districts."
That may be difficult for Texas in particular, as the American Community Survey suggests most of the state's 4 million new residents will come from minority communities. Between 2010 and 2019, Texas grew from about 38 percent Hispanic to 41 percent, with similar increases in the Black and Asian population.
The state will race to finish its maps before congressional primaries start up in March 2022. Courts have pushed around primary dates in the past, including a two-month delay of the state's 2012 congressional primaries, but Saenz said that still may not give enough time for a court case to play out.
In fact, litigation over Texas' last set of maps lasted until a 2018 Supreme Court decision upheld revised maps the state had used since 2013. Saenz said this time around, another Supreme Court ruling, Shelby County v Holder, that eliminated preclearance requirements makes things different. Now courts and the federal government operate under the assumption that Texas' maps will be lawful and plaintiffs have to prove otherwise.
Congress has not addressed the Voting Rights Act since the 2013 high court decision that nixed preclearance as unconstitutional, although Democrats, who control both chambers by slim margins, have introduced a handful of bills to renew the law or change the redistricting process.
Rep. John Sarbanes, D-Md., recently reintroduced the For The People Act (HR 1), which would, among other things, mandate states to adopt nonpartisan commissions for their redistricting process.
Last month, Rep. Terri A. Sewell, D-Ala., spoke in support of a perennial bill to reinstate the preclearance process under the Voting Rights Act, but she has yet to re-introduce the legislation.
Both bills passed the House last Congress but saw no action in the Republican-controlled Senate.