The Senate Select Committee on Redistricting held a public hearing on October 29 to consider organizational matters and to hear invited testimony.

This report is intended to give you an overview and highlight of the discussions on the various topics the committee took up. It is not a verbatim transcript of the hearing, but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Opening Comments

Joan Huffman, Chair

  • The census data will not be available until 2021, but they will be travelling around the state to hear from the public and stakeholders in order to draw the best map possible.
  • San Antonio and Houston have two meetings each.
  • Projections are hypothetical and concrete plans will not be made until the hard data comes out.
  • A brief timeline:
    • April 1, 2020 is the census date.
    • On December 1, 2020 the census bureau delivers apportionment counts to the president.
    • At the end of March 2021, the census bureau completes delivery of redistricting counts to the states, but Texas usually receives their count by mid to late February.
  • Hinojosa- is the travelling schedule final?
    • Huffman- the schedule is subject to change and they will be actively be working to reach as many communities as possible.
  • The proposed committee rules were passed to members and a movement is made to adopt these rules.
    • Rules are adopted by unanimous consent

 

Invited Testimony

Jeff Archer, Executive Director of Texas Legislative Council

  • Overall goal is to provide the committee with the tools, data, and any information that will help the them with this process.
  • Notes the different areas of support that TexLeg will provide for the committee.
  • Notes the online resources that will aid and facilitate the redistricting process, most importantly mentioning Red Apple and District Viewer.
  • On January 1st they will post the link to apportionment documents.

 

Jared May, Section Manager of Mapping and Redistricting of the Texas Legislative Council

  • Discusses the capabilities of Red Apple and District Viewer.
  • Show maps from the American Community Survey to show how districts are growing in relation to the state as a whole.
  • Huffman- how will Red Apple be better than 10 years ago? How can members get their staff trained?
    • Every office will have a login, and initially only a senator will have access. Training, M&R staff will come one on one to train staff, and planning on having more formal training in the fall. May see more self-help videos coming out.
  • West- Red Apple will only be able to be accessed in office?
    • Only on the capitol office and district office computers. Can used be on an issued laptop. In past years, they have provided workstations for public to use Red Apple.
  • Red Apple is always being updated and plans will be able to be saved locally where it remains private. They are preparing pre-sets in order to make the process as easy as possible.
  • Watson- if a member is not ready to publish the map, does it remain confidential?
    • Archer- confidential under state law and legislative privileges.
  • Watson- governing statute creates certain types of privileges any TexLeg is unique in that respect?
    • Yes, correct.
  • Watson- even though there are certain privileges, documents cannot be destroyed due to a possible court order?
    • The council preserves your work indefinitely. They have legal basis to withhold until a court tells them otherwise.
  • Watson- when TexLeg is working with a member on a map, then is the member protected by attorney-client privilege?
    • Correct
  • Watson- who makes the final decision on whether to publish a map?
    • A member’s specific written direction or when a plan is presented at a committee hearing, then it is public.
  • Watson- then the individual senator will have the authority?
    • Yes

 

Ryan Bangert, Deputy Attorney General for Legal Counsel

  • Maps drawn as a result of redistricting are often challenged in court.
  • Whitmire- it would be helpful for us to hear your background. Have you been involved in redistricting or gone to court on this issue?
    • Gave his background and the background of his staff in terms of their experience.
  • Gives a comprehensive presentation on state law versus federal law concerning the statues and current law in place in terms of redistricting. Discusses Section 2 of the Voting Rights Act.
  • West- if you have instances where you have a Latino district and the Latino population goes down, is it permissible to reduce the Latino population and increase the African American population and fracture the Latino or African Americans’ ability to elect a representative of their choice?
    • When dealing with changing populations, there is a framework to follow
  • West- since you mention the framework, let me know if there are any cases in the country that go one way or another.
    • Thornburg vs. Gingles is a case that lays out the framework for evaluating whether or not a Section 2 claim has arisen. This determines whether or not you need to draw a minority opportunity district or a specific district under section 2.
  • West- if you have two minority groups and you do not have a sufficiently large white population, but the African American population is bigger than the Hispanic population, do you look at increasing one over the other, or do you look at districts outside of that district in order to create other minority opportunity districts?
    • Mentions Bartlett vs Strickland concerning cross-over of coalition districts. When you have many minority groups together, there is not a legal requirement, or obligation under section 2, in order to create a Section 2 district.
  • West- if you already have several different minorities in a particular group and the district ends up being a minority district how do you deal with that for redistricting purposes?
    • Discusses Gingles’ framework more with emphasis on the first test that focuses on populations being sufficiently large.
  • West- you don’t have a sufficiently large population. The racial distribution would be equally spread among white, African American and Hispanic citizens.
    • In that case, you fail on step one of the Gingles test and there is no requirement to draw a Section 2 district.
  • West- you are missing my question altogether.
  • West and Bangert discuss resolution of minorities in districts without consensus
  • Whitmire- if both the African American and Hispanic population is over 60%, you do not think that it is protected under the section 2?
    • This would be considered a coalition district and Section 2 does not apply in that instance.
  • Whitmire- is that the courts term or your term that it would be a coalition district?
    • This term has been used by litigants in the past
  • Whitmire- these kinds of districts are also referred to as impact districts.
    • Not saying you would not continue to draw those districts, but the Supreme Court has not required the drawing of a coalition or cross-over district under Section 2 of the Voting Rights Act.
  • Whitmire- what does cross-over mean? I have not heard of that term before. Is that your terminology?
    • That is a term that has been found in the case law.
    • ­Whitmire and Bangert discuss the specifics of what a cross-over district is. Sen. Whitmire is worried about gerrymandering. Whitmire notes that, to him, a cross over district sounds like an impact district and discussion is held again about Gingles factors.
  • Whitmire- going back to West’s example, I am of the view that if the two ethnic groups together would be a significant majority, would be recognized as an impact district, and protected from a Section 2.
    • The concept of an impact district has been discussed in the law and it is my expectation that the senate has drawn lines to protect those districts in the past.
  • Discusses gerrymandering under constitutional law for the purpose of satisfying Section 2 and the court cases Abbott vs Perez and Rucho vs Common Cause.
  • The office of the Attorney General has lawyers who are willing and able to advise members.
  • Watson- what do you do to point to in terms of the attorney-client privilege for individual members or groups of the legislature since the AG office represents the state?
    • If request is made for council, then that sets up the attorney-client relationship.
  • Watson- if the AG office represents the state, how would an individual hold precedence?
    • Have always interpreted that the AG office has the right to represent the state and that encompasses legislators as well.
  • Watson- how is there no conflict of interest between the individuals or groups that are represented by the same member of the AG office?
    • These things are evaluated and handled carefully.
  • Watson- has the AG office started the process of how they will deal with conflict in representing individuals of different interests? Can foresee conflict in this regard.
    • Yes, it is ongoing.
  • Watson- it is imperative for members to know they might be exposed if there is not a good basis for claiming privilege.
  • Huffman- in the past, I believe some privileges that individuals thought existed were stripped by the court. Are you familiar with that?
    • Yes, there were a few federal cases in terms of privileges in communications with counsel were drawn into questions, but those cases were vacated so there is no precedent to pull those privileges.
  • Watson- people need not assume confidentiality. HB 4181 creates confidentiality in certain situations, but nothing was put there in regard to the AG office.
    • There are instances where confidentiality is subject to exceptions if it is challenged in court.
  • Watson- concerning advise, be prepared to explain how advise is given consistently.
  • Huffman- is the AG office working on assigning a retainer contract for members of the legislature?
    • It is certainly under consideration.
  • West- in terms of the merit and legal report between the executive and legislative branch, has your office thought that through?
    • We are currently evaluating the best way to provide legal services to the legislature.
  • West and Sen. Watson discuss their concerns with the legality and constitutionality of the members of the AG’s Office being on retainer for legislators.
    • Watson- there is a tension between the individual groups and members because the AG’s office represents the state.
  • Huffman- this is a work in progress, and we will continue to discuss these issues.
  • Alvarado- can you summarize a brief on Rucho vs Common Cause that the AG’s office submitted and what the state of Texas’s role was in this case.
    • Can provide the information and a copy about that brief.

 

James Whitehorn, US Census Bureau

  • Explains voting districts, census blocks and the goals of the Census Bureau for redistricting.
  • Outlines the five phase program the CB will use in order to collect, interpret and distribute census data.
  • They will have one short verification window starting in January – March 2020 of the initial collection of their voting districts.
  • Responsible for data delivery on April 1, 2021.
  • Geographic data will be handed out to states from late November 2020 – February 1.
  • Tabulation data will be handed out starting February 18 – March 2121.
  • State legislative voting districts maps are now state legislative district based.
  • Describes the types of data and tools the states will have access to.

 

Dr. Lloyd Potter, State Demographer

  • Re-apportionment is a result of our population count. If there is not proper count, Texas stands to lose out on significant federal resources.
  • Showed population change projections that result in Texas possibly gaining three congressional seats and other states possibly losing seats.
  • Shows data that illustrates the counties that are growing/losing population.
  • Discusses migration patterns and the rate of growth for the Latino population versus the rate of growth in the Asian population.
  • Huffman- in your count, do you differentiate between those who are illegal immigrants versus legal?
    • These estimates include both.
  • Menendez- so what you’re saying the population count affects the amount of money that comes back to Texas.
    • Yes
  • Menendez- have you heard that some states have appropriated money in order to get a complete count?
    • Yes.
  • Menendez- California has put aside $100 million dollars in order to get an accurate count.
    • Yes, that is my understanding as well.

 

Wendy Underhill, National Conference of State Legislature

  • Goal is to put Texas’ redistricting process into a nation-wide context.
  • Discusses NCSL and stresses they are a non-partisan entity.
  • Concerning confidentiality, like was discussed earlier, NCSL does not share information with other individuals or other states about the questions you ask about. However, they do not have legislative privilege with members.
  • Discusses data sharing with local districts that comes after congressional lines are drawn.
  • Concerning re-apportionment, she notes the specific states who stand to gain and lose seats.
  • Outlines the process and the tools that states need/use for redistricting.

 

Robert Heath, Attorney

  • Traditionally, Texas has used total population in order to determine apportionment. There is an argument that Texas should use eligible voter population (CVAP).
  • Cites Chin vs the City of Houston, Lepak vs the City of Irving, and Evenwel vs Abbott to argue for and against these two sides concerning practical, and possible partisan, effects of both.
  • Using CVAP could discriminate against certain protected populations; particularly Hispanics.
  • Nelson- have you done any analysis on the what using CVAP would do to the Hispanic population? I have heard reports that using this measure would take Hispanic representation back to the 1980s
    • I cannot tell you what it would specifically do, but I have looked at an amicus in the Supreme Court for Harris county and they looked at how CVAP would affect urban districts.
  • Nelson- what would it do there?
    • For Harris County, it would mean a loss for a certain number of representative districts, house districts, and about half of a senate seat. Saw something similar in Dallas.
  • Nelson- you referred to Article 3 Section 25 of the Texas Constitution that states “according to the number of qualified electors.” What is the right phrase in that section because there are two different versions of this that have been presented here today
    • Potter, State Demographer- In 2001, that section was amended to simplify the language. At that time, that provision as applied as unconstitutional.
  • Menendez- rural Texas is mostly below the standard of deviation, such in the Valley region. If CVAP was used, would reduce the total pool of people to make those districts?
    • Heath- Each district is going to be smaller at that point and so some places will be above and below the standard of deviation.
  • Menendez- so regardless of if we use CVAP or total population, there will be districts above and below the standard of deviation.
    • Correct, but also these populations can be affected by population change, age, or ethnic distribution.
  • Menendez- you were here for the Attorney General’s presentation correct? They had a slide on the 1 person 1 vote in the constitution, do you think CVAP is an affront to that?
    • Yes, but I am not ready to say that. I think there is an argument for each side. If that went to the Supreme Court, there is a real possibility that they would say CVAP is permissible. Burns vs Richardson is discussed in terms of a transient military population being included in total population.
  • Menendez- in the demographer’s presentation, he discusses how 53% population growth has been from minority groups.
    • Could affect minority representation negatively.
  • Bettencourt- “According to the number of qualified electors” is not constitutional language.
  • Hinojosa- CVAP does not only have potential to discriminate against Hispanics, but also children.
    • Yes
  • Hinojosa- CVAP would potentially provide underrepresentation.
    • Hispanics have more children than Anglos.
  • Hinojosa- Other non-Hispanic families have children.
  • Alvarado- what are the merits to representational equity?
    • Everyone is represented. California and Vermont have equal representation with 3 congressmen. If you went to a voter system, Vermont would have 3 and California would have 8.
  • Alvarado- would you say the intent of the founders was representational equity?
    • Congressionally, yes.
  • Alvarado- would CVAP present a challenge to the Voting Rights Act?
    • If section 5 were still in effect, a switch would be applicable.
  • West- as long as we comply with the test for Congress, they can choose which they’ll use?
    • I imagine SCOTUS would say it is usable.
  • West- do both sides have to use the same methodology?
    • I do not know. I think different ones would be allowed.
  • West- when is the decision on methodology used?
    • Vote of the body with Committee recommendations.
  • West- before the process begins?
    • It makes sense to see if the database will be there.
  • West- that database could be tied up in litigation?
    • It could be. When the citizenship question was debated, it hadn’t been tested. You do not change the questionnaire without testing.
  • Menendez- on page 11 of the demographic result, 84% of Texas population growth has been from racial and ethnic minority groups. It would be impossible for the test not to be retrogressive.

 

Michael Lee, Council Democracy Program at the Brennan Center for Justice

  • Improving public participation in the voting process is something we study heavily at the Brennan Center.
  • We have provided 8 recommendations on this topic.
  • Of these, the most important for Texas is to be clear in what you’re looking for from the public.
  • In California, a community of interest had to be defined with boundaries before testimony could be given.
  • In California, for example, people in the foothills wanted to be a part of the same district because they shared a common issue – wildfires.
  • The commission reviewed their testimony and drew the district accordingly.
  • The next election, both democrats and republicans are campaigning on wildfires.
  • In New York, Congresswoman Cortez gets calls from the Bronx saying that the mail is only delivered once a week – her office addresses this as a community of interest.
  • Huffman- how did California enforce that requirement?
    • The boundaries had to be spelled out in the submission for testimony.
  • It also helps if people can comment on actual maps.
  • The biggest limit relating to Texas on partisan gerrymandering is that race cannot be used when drawing maps.
  • In Cooper v Harris, intent in racial gerrymandering is irrelevant.
  • Race and ethnicity are closely aligned in Texas.
  • Coalition districts – the fifth circuit has upheld districts at the city council level, most notably in Campos v City of Baytown.
  • Watson- in Bartlett v Strickland, districts were referred to as coalitional districts – this may create confusion on coalition districts.
    • In the fifth circuit, those districts are allowed if you can prove political cohesion.
  • Crossover districts are not protected, nonetheless there are situations in which these districts exist naturally.
  • If the natural districts are dismantled, that is illegal.
  • There are legal and pragmatic reasons for sticking with total population.
  • 80% of people not eligible to vote are children.
  • Many of them will turn 18 in the next decade.
  • Section 2 applies itself to any choice of a practice or device used to draw districts.
  • It is reasonable to have at large elections for a city.
  • If choosing at large elections means minorities are not allowed to select their candidate of choice, that is not constitutional.
  • There are likely to be many data problems with this.
  • Republicans, who have controlled redistricting, have traded safer seats for more seats.
  • Alvarado- you referenced a 2011 congressional map modified by the courts. What lessons can we learn from that map?
    • Partisan benefit on that map was generated by diluting minority representation. The lesson is that in Texas it is difficult to engineer a benefit for either Democrats or Republicans without using minority communities. If people had treated minority communities more fairly in 2011, it would have created more stability.
  • Hancock- you said you were nonpartisan, but when talking about districts you mentioned only Republican redistricting. The issue in North Texas was not a Republican district?
    • DFW had one minority district. The argument was that there should be two or three. Those two or three would have come at the expense of then Republican members.
  • Hancock- the courts ruled against those districts.
    • No, they accepted them. The court created and the legislature enacted them.
  • Hancock- that is not a Republican district?
    • No.