tate Publications Depository Program at the Texas
State Library and other state depository libraries. An online version of this publication can be
found at http://www.tlc.state.tx.us/tlc/research/pubs.htm. Table of Contents
Introduction
Chapter 1
The Texas Redistricting Process
Chapter 2
One Person, One Vote: The Equal Population Requirement
Chapter 3
Minority Vote Dilution and Section 2 of the Voting Rights Act
Chapter 4
Federal Preclearance: Section 5 of the Voting Rights Act
Chapter 5
Constitutional Prohibitions Against Racial
Discrimination and Racial Gerrymandering
Chapter 6
Partisan Gerrymandering
Chapter 7
Substantive Redistricting Standards in the Texas Constitution
Chapter 8
Court-Ordered Redistricting Plans Introduction
In Wesberry v. Sanders, the landmark voting rights case extending the principle of one person,
one vote to the election of members of the U.S. Congress, the U.S. Supreme Court stated that [n]o
right is more precious in a free country than that of having a voice in the election of those who make
the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory
if the right to vote is undermined.
1
It has long been recognized that manipulating the composition of legislative, congressional,
and other elective districts can be just as effective in fencing disfavored groups out of the political
system as directly prohibiting the right to vote itself. However, before 1962, federal courts and the
courts of most states refused to hear cases challenging the composition of those districts. The
courts took the position that redistricting is exclusively a political matter in which judicial
involvement would be inappropriate. The Supreme Court summarized that position in 1946 in
Colegrove v. Green, a suit challenging the validity of Illinoiss congressional districts on a number
of constitutional grounds, including the population inequality among the districts:
It is hostile to a democratic system to involve the judiciary in the politics of the
people. . . . The petitioners urge with great zeal that the conditions of which they complain
are grave evils and offend public morality. . . . But due regard for the Constitution as a
viable system precludes judicial correction.
2
The Court concluded that the federal judiciary should not enter the political thicket of redistricting.
3
Most courts routinely dismissed redistricting challenges until the Supreme Court reversed its
position in the 1962 case Baker v. Carr.
4
In that case, the Court abandoned the hands-off approach
exemplified by Colegrove, holding that the federal courts must consider and decide claims by
disgruntled voters that legislative redistricting plans violate their federal constitutional rights. The
need for judicial scrutiny of districting plans was especially apparent in light of the extreme population
disparities among districts that existed in many states. Since those who suffered most from such
malapportioned districts lacked the very representation needed to remedy that malapportionment in
the redistricting process, federal judicial intervention was necessary to break the incumbents
stranglehold. The Court realized that, as a matter of political reality, incumbent state legislators
could not be relied on to fully protect the voting rights of all citizens at the cost of their own
political power. Since the Baker decision opened the federal courthouse to legal challenges to the
composition of districts, those challenges, against both state and local redistricting plans, have
flourished under state and federal law all over the country.
Supreme Court decisions handed down since Baker have recognized three major constitutional
standards governing redistricting plans:
(1) districts must be of equal population to ensure that the value of every persons vote is
substantially equal;
(2) a plan may not intentionally dilute the voting strength of members of a racial or ethnic
minority group; and
(3) a plan that contains districts drawn primarily on the basis of race or ethnicity requires a
compelling justification. Within three years of the Supreme Courts decision in Baker, Congress enacted the federal
Voting Rights Act of 1965, which was substantially revised in 1982.
5
The act introduced a whole
new body of statutory law to help enforce the guarantees of the U.S. Constitution against racial and
ethnic discrimination in the electoral process. The Voting Rights Act is the single most important
law protecting the voting rights of racial and ethnic minority groups. The act has had a revolutionary
effect on state and local voting practices in general and on redistricting plans in particular. Section
5 of the act requires certain jurisdictions, including the State of Texas, to obtain from federal
authorities prior approval of any redistricting plan. Section 2 of the act allows members of a racial
or language minority group to challenge a redistricting plan that limits or diminishes their opportunity
to participate in the electoral process and to elect representatives of their choice.
In addition to challenges based on these federal constitutional and statutory grounds, a substantial
amount of litigation has occurred in state courts challenging redistricting plans as violative of state
constitutional requirements. Since no two states have identical constitutional provisions governing
redistricting, this litigation has developed independently in each state. The interplay between
sometimes inconsistent state and federal requirements and the difficulty of complying completely
with both further complicates redistricting law.
Several important developments in voting rights law since 1991 may make it easier in some
respects, and harder in others, to adopt redistricting plans that pass legal muster. The burden imposed
on a jurisdiction by preclearance under Section 5 of the Voting Rights Act has been greatly reduced
by the federal courts (see Chapter 4). The threat of judicial scrutiny over the partisan results of a
redistricting plan seems largely to have disappeared (see Chapter 6). However, federal courts have
become much more strict in reviewing the use of racial or ethnic factors in constructing a new
redistricting plan. As a result of litigation in the 1990s, a redistricting plan still must protect the
voting strength of a geographically compact, politically cohesive racial or ethnic group (see Chapter
3), but may not use race or ethnicity as the primary factor in the construction of districts without an
extraordinary justification (see Chapter 5). Walking the tightrope of relying too much or too little
on racial or ethnic factors may make it harder than ever to enact redistricting plans that will withstand
judicial scrutiny.
This publication is intended to assist the Texas Legislature in carrying out its redistricting
responsibilities and to provide information about Texas legislative redistricting to the public and
other interested persons. It focuses on the legislative redistricting process under Texas law and the
redistricting rules provided by state and federal law applicable to the four statewide bodies for
which the legislature is to draw new districts after publication of the 2000 federal census: the states
congressional delegation, the Texas Senate, the Texas House of Representatives, and the State Board
of Education.
Local governments in Texas are also subject to the federal constitutional standards and the
Voting Rights Act. After publication of the 2000 census, election districts for local governmental
bodiessuch as county commissioners precincts, city council wards, and school board districts
must be redrawn to eliminate excessive population disparities between districts and to eliminate
any unlawful dilution of minority voting strength that the new census figures reveal in the old
districts. While many portions of this publication may be generally applicable to local as well as
state redistricting, this publication is not intended to serve as a guide for local redistricting. Readers should be cautioned that rapidly occurring developments threaten to make portions of
any publication obsolete overnight. In the six months before the release of this publication, the
methods the Census Bureau uses to compile the official federal census data have changed dramatically.
At one point, the issue on whether a state would use adjusted or unadjusted data for its congressional
and legislative redistricting seemed to be a defining feature for the 2001 round of redistricting. But
the March 2001 recommendation of the professional staff at the Census Bureau against releasing
statistically adjusted census data and the subsequent decision by the commerce secretary to adopt
that recommendation have relegated the issue to secondary status at best for the upcoming
redistricting efforts. Judicial decisions refining and revising the legal standards for redistricting
will proliferate after states and local governments begin to adopt redistricting plans in 2001. It will
therefore be necessary to monitor developments in redistricting law that take place after the release
of this publication to keep abreast of the issues that face the legislature in its effort to enact redistricting
plans that will survive court challenge. Notes, Introduction
1
376 U.S. 1, 17 (1964).
2
328 U.S. 549, 553-554.
3
Id. at 556.
4
369 U.S. 186.
5
Now codified, as amended, at 42 U.S.C. Secs. 1973 to 1973bb-1. Chapter 1
The Texas Redistricting Process
I.