Why Pending "Redistricting Reform" Should Be Revised or Opposed

On Wednesday, May 2, 2007, the House Redistricting Committee of the 80th Regular Session of the Texas Legislature conducted a public hearing on several proposals inspired by the emerging movement for “redistricting reform” in Texas.1 The proposals considered by the Committee consisted of three House Joint Resolutions (i.e., proposed State constitutional amendments);2 one Senate Bill;3 and two House Bills.4 Ostensibly these measures, proposed by Democrats and Republicans alike, are intended to prevent a recurrence of the infamous “re-redistricting” of congressional districts that occurred during the 78th Regular and Special Sessions of the Legislature in 2003. Similarly, with the exception of the proposed Senate Bill (which is confined solely to congressional redistricting), each of these measures propose “time limitations” on the enactment or alteration of State Senate and House districts as well, and are purportedly designed to avoid the same evil. Unfortunately, while the efforts behind the foregoing measures are commendable, it appears that all of the measures presented to the Committee, as written, will be wholly ineffective to prevent recurrence of the sort of “re-redistricting” that occurred in the Texas Legislature during 2003.

The primary defect in the process of the congressional “re-redistricting” in 2003 was not that it was inspired by a “purely partisan” purpose, but, more fundamentally, that it was undertaken for reasons wholly unrelated to any legitimate public purpose at all. The proposed measures before the House Redistricting Committee errantly focus solely on ensuring a politically “balanced” or “bipartisan” commission to perform the electoral redistricting function. As a result, they all neglect to properly confine redistricting power, and indeed actually authorize “re-redistricting” for reasons wholly unrelated to any legitimate public purpose. Consequently, these measures cannot accurately be characterized as “reform measures.” Given that other opportunities will be presented for the People of Texas to consider and ratify truly remedial amendments to the Texas Constitution (i.e., before electoral redistricting recommences after release of the next federal decennial census in March 2011), these measures should all be rejected at the present time unless revised.

The Defects in the Proposed Amendments, and in Senate Bill 1068.

As I have discussed at greater length in a recent law review article,5 the power to engage in electoral redistricting is a necessity arising from the constitutional principle of “one person, one vote.” The concept of constitutionally limiting the frequency of electoral redistricting, which is closely related to the “one person, one vote” principle, can be traced to the earliest years of American Democracy. At the first Continental Congress on September 6, 1774, Patrick Henry unsuccessfully proposed that voting strength in the new Congress should be governed solely by a periodic census of the “freemen” in each colony.6 Later, during the Spring of 1776, in response to political manipulation of the voters by the “loyalist” Pennsylvania Assembly, Thomas Paine proposed that:

“A CONSTITUTION should lay down some permanent ratio, by which the representation should afterwards encrease [sic] or decrease with the number of inhabitants; for the right of representation, which is a natural one, ought not depend upon the will and pleasure of future legislatures.”7

The defect in the Texas constitutional amendments presently proposed, and in SB 1068, is that each would permit either the Legislature or an appointed “commission,” at its “will and pleasure,” to enact or modify electoral districts after a State or Federal Court has implemented valid districts which already comply with the “one person, one vote” principle. Nor do the measures that have been proposed confine redistricting power to any other legitimate governmental purpose.

Settled legal precedent, in both the State and Federal courts, has established that courts will not intervene and judicially impose electoral redistricting plans unless or until a State legislative body, or a State agency with delegated power, has exhausted all opportunities to enact a valid redistricting plan in time for an impending election. Only after determining that an existing districting plan is unconstitutional (or otherwise unlawful), and even then, only after giving the appropriate State legislative body or agency ample time to correct a redistricting plan’s legal deficiencies, will a court devise and impose a redistricting plan of its own. Yet none of the “redistricting reform” measures, as presently proposed, limit the “re-redistricting” power they confer to the period of time after a court has ruled a redistricting plan unlawful, and before a court has found it critically necessary to impose a plan of its own. Because the proposed “reform” measures permit electoral redistricting after valid districts have been established by a court, they essentially invite “re-redistricting” for reasons wholly unrelated to any legitimate public purpose. A better recipe for abuse of redistricting power could not be formulated.

As proposed in HJR 22 (by Rep. Strama), Texas Constitution Article III, Section 28A, subsection (j) would allow a redistricting commission to “reconvene to modify a redistricting plan if the plan becomes unenforceable by order of a court.” Again, HJR 22 does not limit the authority for “re-redistricting” to the period of time after a court has ruled a redistricting plan unlawful, and before a court has found it necessary to devise and impose a plan of its own due to the redistricting commission’s failure to timely act. Worse yet, under subsection (j) of HJR 22, such a “re-redistricting” would not be “limited to modifications necessary to correct legal deficiencies.” In identical terms, both HJR 101 (by Villarreal) and SB 1068 (by Wentworth, but confined to congressional districts) contain provisions authorizing the same power to engage in “re-redistricting.”

Although slightly more restrictive, HJR 31 (by Rep. Ritter) contains the same flaw as the foregoing “redistricting reform” measures. Section 28A, subsection (c) of HJR 31 proposes to amend Article III of the Texas Constitution by providing in relevant part that:

“If a trial or appellate court or other governmental agency with jurisdiction over the matter finds that one or more districts in effect for or previously enacted or ordered for the election of members of the legislature or the United States House of Representatives are invalid… the legislature may enact a bill…relating to the same legislative body within one year after the date of the court or agency action.”

The factual scenario envisioned by HJR 31, Section 28A, Subsection (c), is, for practical purposes, indistinguishable from the factual scenario which precipitated the calamitous “re-redistricting” that occurred during the 78th Regular and Special Sessions of the Texas Legislature. In the 78th Sessions of the Texas Legislature, the Legislature assumed authority to “enact and modify” congressional districts on the grounds that a Federal Court had ruled the existing districts invalid, and had judicially implemented valid districts under its own authority in November, 2001. Like the authority assumed by the 78th Texas Legislature in 2003, HJR 31, Section 28A, Subsection (c), if adopted and ratified, would now expressly permit the Legislature to enact or modify electoral districts under essentially the same circumstances.

Although HJR 31, in contrast to the other measures proposed, would limit “re-redistricting” authority to a period of not more than “one year after the date of the court or agency action” (which finds existing districts unlawful), this limitation would rarely prove effective in preventing abuse of redistricting power for a purely partisan or other illegitimate purpose. As the events of 2003 amply demonstrate, it is not unlikely that in future years following the return of the federal decennial census, a political party (or a discreetly partisan Redistricting Commission) may find it tactically advantageous to prevent timely enactment of electoral districts, believing that a subsequent election, occurring after judicial implementation of valid districts, may afford it greater partisan control of the redistricting process in a succeeding legislative session.

By way of illustration, the Federal Court during the last redistricting cycle ruled in November, 2001, that the existing congressional districting plan (based on the 1990 federal decennial census) was invalid, and imposed a valid congressional redistricting plan of its own at that time. Had HJR 31, Section 28a(c) been in effect that time, the Legislature would have been prohibited from altering or “re-redistricting” the court’s plan after November 2002, as it did between January and October of 2003. After the Court’s decision in November, 2001, given the legislative deadlock at the time, it was unlikely that the balance of partisan political power could have significantly shifted before the next biennial general elections for the Texas Legislature in November 2002. Thus, assuming that a future court will act as expeditiously as the court did in November, 2001, i.e., a mere six months after the Legislature has adjourned it regular session (or sooner), Subsection (c), if adopted and ratified, would almost certainly prevent “re-redistricting” after the court has judicially imposed a valid redistricting plan.

On the other hand, the timing of the Federal Court’s action in November, 2001 was highly unusual in that it came much earlier than would ordinarily be the case. Governor Perry, in both public statements and through his counsel, had informed the Court during the Summer of 2001 that he did not intend to call a Special Session of the Legislature for the purpose of undertaking congressional redistricting. Under these circumstances, the Court was enabled to act much earlier, based on its conclusion that the Legislature had effectively exhausted all opportunities to enact a valid congressional redistricting plan in time for next biennial elections in November, 2002.

Under ordinary circumstances, however, a court is unlikely to rule that an existing redistricting plan is unlawful until much later than the Federal Court did in November, 2001, given its duty to refrain from acting until it is certain that the State legislative body, or State agency with delegated power, has exhausted all opportunities to timely enact a valid redistricting plan. Again, by way of illustration, during the last redistricting cycle, had the Federal Court invalidated the congressional districts in March, 2002, rather than in November, 2001, and had HJR 31, Section 28a(c) been in effect that time, the Legislature would not have been prohibited from altering or “re-redistricting” the court’s plan until March 2003, after the biennial general election held in November, 2002.

In short, HJR 31 does nothing to restrain a political party from preventing the timely enactment of electoral districts when it perceives that a subsequent election, occurring after judicial implementation of valid districts, may afford it greater partisan control of the redistricting process in a succeeding legislative session. Because a constitution should not include an open invitation for electoral chaos every decennial, HJR 31, like the other “redistricting reform” measures mentioned, should be rejected.

A Proposal for the Future.

Generally speaking, there is nothing inherently improper about recognizing that Legislatures or Redistricting Commissions remain under a “continuing duty” to act after they have failed to timely (or validly) enact new electoral districts upon the return of each federal decennial census. It is quite another thing, however, to constitutionally authorize a Legislature or Redistricting Commission to alter valid electoral districts “at will” for reasons unrelated to any legitimate governmental need or purpose.

To ensure that abuses of redistricting power do not occur, an effective constitutional provision should simply require strict adherence to the principle that once a valid redistricting law is enacted or judicially implemented, no alteration of districts may occur until after the return of a succeeding census. Beginning with the Pennsylvania Constitution of 1776,8 and the New York Constitution of 1777,9 a large number of States have adopted this principle in their State constitutions in a manner that prohibits multiple intra-census redistricting by their Legislatures.10 There is no legitimate reason why this principle should not apply in Texas when valid districts have been judicially established as result of the Legislature’s (or Redistricting Commission’s) default. It was precisely this principle upon which the Supreme Court of Colorado relied when ruling in 2003 that, under its State constitution, no residual redistricting power remained once valid districts had been judicially implemented. See, People ex rel Salazar v. Davidson, 79 P.3d 1221, 1237-1243 (Colo. 2003).

In light of the foregoing discussion, it is suggested that in lieu of the various “redistricting reform” measures presently before the Texas Legislature, the People of Texas should be allowed to consider the merits of a constitutional provision that would simply amend Article III of the Texas Constitution by adding a Section which states as follows:

“Once valid electoral districts for the election of Members of the Legislature or the United States House of Representatives have been established following the return of a federal decennial census, through an act of either the Legislature, a State or Federal Court, the United States Congress, or a governmental agency having subject matter jurisdiction over redistricting, such districts shall remain unaltered until the return of a subsequent federal decennial census.”

At the conclusion of its hearing last Wednesday, the House Redistricting Committee left all of the “redistricting reform” measures pending in committee. The present Regular Session of the Legislature is expected to adjourn sine die later this month; but Republican Representative Joe Crabb, Chair of the House Redistricting Committee, has privately indicated that an “interim” committee may be appointed to consider redistricting reform between this and the next Session of the Texas Legislature. If appointed, such an interim committee would likely convene and conduct additional (and perhaps more open) public hearings this Summer.

While there does not appear to be any reasonable prospect for the adoption of truly remedial “redistricting reform” amendments to the Texas Constitution during the present legislative session, should an “interim” committee be appointed on this matter, I would encourage all Democrats to communicate with its Members. For the reasons stated above, Democrats should insist that, if the Texas Constitution is to be amended in this area, it should be amended in a manner that expressly prohibits “re-redistricting.”