In 2001, thanks to our growing population, Texas received two more congressional seats. The Texas Legislature, charged by the Constitution with the responsibility of drawing the new congressional maps, was deadlocked. Republicans controlled the state Senate, but Democrats still controlled the state House. Because the Legislature could not agree, a federal court redrew the maps in 2001, largely staying consistent with the political determinations that had been made in the 1991 gerrymander. Thus, even though Republicans held all twenty-nine statewide elected offices in Texas, and even though the voters of Texas voted 53 percent to 44 percent in favor of Republicans in the 2002 congressional election, Democrats retained a seventeen to fifteen advantage in the congressional delegation.
Then in 2003, Republicans won the Texas state House. So the Legislature endeavored to take up the task upon which it had deadlocked two years earlier. Their objective was simple: to draw lines that would allow a substantial majority of Texas voters to elect a substantial majority of their congressional delegation. Texas Democratic House members did not want their gerrymander undone, so they fled the state to avoid taking a vote, heading to the small town of Ardmore, Oklahoma. In the press, the fleeing Democrats were dubbed the “killer Ds,” in homage to the “killer bees,” twelve liberal Democratic Texas senators who had busted a quorum in 1979 to prevent a vote on a presidential primary bill that was favorable to then-Republican candidate John Connally.
Their quorum busting worked, and the regular legislative session expired. But Texas Governor Rick Perry would proceed to call three consecutive special sessions to complete the task of redistricting. In the second special session, it was the Senate’s turn to flee, with twelve Democrats absconding to a luxury hotel in Albuquerque, New Mexico (reflecting the differences in the chambers, their accommodations were much fancier than the House members’ more mundane Holiday Inn in Ardmore).
Although arrest warrants were issued for the fleeing legislators, because they had crossed state lines to escape Texas jurisdiction, nobody was arrested. Finally, however, Democratic resistance was worn down, and by the third special session, both houses of the Legislature were able to pass a congressional redistricting bill.
Doing so was a complicated endeavor. My job as solicitor general typically entailed representing the state in court, but part of the job also required me to advise the Legislature on complicated questions of law. Here, Attorney General Abbott asked me to provide the Legislature the best legal advice as to how they could draw the map consistent with federal law.
There are numerous federal constraints on map drawing, the two most significant of which are the Voting Rights Act and the Fifteenth Amendment to the Constitution. Supreme Court case law concerning both is complicated and often contradictory. In ordinary parlance, in an ordinary life, most of us don’t typically divide people into racial categories. In redistricting law, doing so is unfortunately required.
The Supreme Court has interpreted the Voting Rights Act to mandate an almost obsessive focus on race, concentrating African-American voters in districts where they are more likely to elect African-American representatives and concentrating Hispanic voters in districts where they are more likely to elect Hispanic representatives. To comply with the Voting Rights Act, legislatures are required to look precisely at the ethnic breakdown of every district. Sophisticated mapping technology enables lines to be drawn block-by-block and house-by-house, with the racial, ethnic, and partisan breakdown of each displayed.
I don’t enjoy redistricting litigation because it is so obsessively focused on racial distinctions, something I find quite distasteful. And to make matters worse, the Supreme Court’s requirements that a legislature must focus on race are contradicted by its constitutional rulings that a legislature can’t focus too much on race. Interpreting the conflicting requirements is no easy task. Moreover, redistricting by its nature entails myriad political determinations. For example, more than a few Texas Republican state representatives wanted to “take out Martin Frost,” because of his role in the previous Democratic gerrymander.
My instructions from General Abbott were to provide legal advice and stay out of the politics. Accordingly, I would do my best to advise whether a particular decision was consistent or inconsistent with federal law or the Constitution. But when decision-making got overtly political, I would get up, excuse myself, and leave the room, telling the representatives, “You’re entitled under the law to make political determinations. I’ll be outside if you have any legal questions for which you might need me.”
Ultimately, the Legislature adopted a map that went from two congressional districts where African-Americans were likely to elect an African-American representative up to three congressional districts where African-Americans were likely to prevail. The map, likewise, went from seven majority-Hispanic districts to eight. The losers in the map were white Democrats, whose districts were redrawn to make their defeat more likely. The result was passionate Democratic opposition to the plan.
When the bill passed, just two Democratic representatives, Ron Wilson and Vilma Luna, voted for the redistricting plan. Representative Wilson was an African-American Democrat from inner-city Houston, and Representative Luna was an Hispanic Democrat from the South Texas town of Alice.
As soon as the map was signed into law, an array of litigants immediately sued, challenging its legality. I spent the next year in and out of trial court, helping lead our trial team and defending the multiple challenges to the map. The principal case was tried before a three-judge federal district court, which consisted of one court of appeals judge and two trial court judges. A three-judge district court is an unusual forum that exists for certain types of redistricting
