In an unusual set of circumstances, the Texas legislature will again redistrict the state just 2 years after its last redistricting measures, as reported by The Texan News.
The Texas State Constitution states that redistricting must happen during the first regular session after the release of the census results
This is convenient, as census results are normally released at the beginning of the first odd year of every decade, when the Texas legislature is already meeting in a regular session. It is during this session that lawmakers are supposed to redraw the maps in order to comply with the Constitution.
In fact, federal law mandates the Census Bureau to publish the results at that time, but this was not the case in 2021. The agency, citing the COVID-19 pandemic, did not release the Census data until August 2021 – after the January 2021 regular session adjourned, during a special session.
Consequently, the first “regular session” that is taking place after the publication of the census will be the upcoming 88th legislative session beginning in January 2023.
Lawmakers in Texas approved new legislative maps during the special session following the release of census data last year, despite pushback from some lawmakers who argued that according to the constitution, any redistricting should have waited until the January 2023 session.
Before the latest maps were drawn during the August 2021 special session, State Senators Sarah Eckhardt (D-Austin) and Roland Gutierrez (D-San Antonio) filed a lawsuit to halt the redistricting process until 2023.
However, the lawsuit filed by the Democratic senators was put on hold by the court, which stated it did not want to get involved in such a political case so close to an election. In a January court filing, the plaintiffs of the case even acknowledged that “no one asks this Court to disturb the current election cycle at this point in the litigation.”
The lawsuit has now been consolidated with other redistricting cases that the Texas Supreme Court will hear.
In a surprising move, the state agreed with the plaintiffs that redistricting should again take place in January 2023 and thus argued that the lawsuits were moot. Lanora Pettit, Texas’ principal deputy solicitor general, made the assertion in a reply brief.
“The state takes the position that the Legislature is required to redistrict again in January of 2023 and as a result, because (the plaintiffs) are not seeking to change the outcome — the map — for this election cycle, then whatever this court would be to order would not have an effect on a real world election,” Pettit said.
The state also defended the lawmakers’ decision to redistrict and approve new maps during the special session.
“[N]othing about a requirement to redistrict in a ‘regular session’ precludes reapportionment at another time — particularly when required by federal law,” the state says in the brief.
However, the plaintiffs say their only goal with the lawsuit is “to allow sufficient time for the parties to litigate the merits before the 2023 legislative session.”
But the state defendants are opposed to that aim, calling it an “advisory opinion,” and contending that “it is well established that Texas courts lack jurisdiction to issue such precatory, non-binding decisions.”
The Mexican American Legislative Caucus (MALC) is one of the parties that disagrees with the state’s contention. They argue that the state is misconstruing their arguments to frame them as an “advisory opinion.”
“Although MALC has abandoned its request for temporary injunctive relief ahead of the 2022 primary election,” MALC stated, “this does nothing to change the live declaratory judgment action at the heart of MALC’s Petition.”
“Rather than being simply advisory, a ruling by the court as to the constitutionality of the Texas House of Representatives electoral map is unconstitutional would be a determination of legal statuses, rights, and relations,” the group added.
MALC also claimed that the latest maps violated the “county line rule.” The Texas Constitution requires state House districts to be entirely contained within county lines if the county has a large enough population to allow it.
MALC alleges that the districts drawn in Cameron County, on the southern tip of Texas, violate this rule.
They argue that Cameron County has sufficient population to allow two House districts to exist wholly within the county. However, legislators only drew one district entirely within the county. The remainder of Cameron county was split between two house districts and combined with portions of Hidalgo and Willacy counties. MALC alleges that the division illegally diluted the power of Cameron County voters.
All eyes are now on the courts to see how their decision will shape further redistricting. Meanwhile, both sides agree that “the Legislature is obliged to redistrict during the ‘first regular session’ after the census—the 2023 regular session.”
Still, the courts are not expected to wipe out the latest maps, so they will continue to be used in this year’s elections.