Contrary to House Minority Leader Hakeem Jeffries’s nutty claim that Republicans are trying to “steal the midterm elections” by redistricting in Texas, state legislators there are trying to correct what the Justice Department correctly calls “unconstitutional racially based” gerrymanders.
Their fix will ensure that the over two million new residents of Texas get what they are entitled to in Congress: fair representation.
The claim that engaging in mid-decade redistricting is somehow illegal is complete nonsense. No federal or state law, constitutional provision, or court precedent limits states to redistricting just once every ten years. More frequent redistricting is simply rare because it often results in brutal political fights and years of litigation by those unhappy with the results.
Not only that, but Texas is acting to bring its districts in line with federal law and court decisions.
On July 7, Harmeet Dhillon, the Assistant Attorney General for Civil Rights at the U.S. Justice Department, sent a letter to Texas Gov. Greg Abbott and Attorney General Ken Paxton informing them that four Texas congressional districts drawn in the state’s 2021 redistricting—TX-09, TX-18, TX-2, and TX-33—are now “unconstitutional racially based” gerrymanders that “must be rectified immediately” by the state legislature.
This warning is based on the Fifth Circuit’s 2024 decision in Petteway v. Galveston County, in which the court reversed a 1988 precedent and held that so-called “coalition districts” are not protected under §2 of the Voting Rights Act.
Unlike majority/minority districts in which a single racial minority group constitutes over 50% of the voters, thus giving the group the ability to elect their candidate of choice, coalition districts combine two racial or ethnic minority groups—such as blacks and Hispanics—to reach the 50% threshold.
In Petteway, the appeals court said that while majority/minority districts are protected under the Voting Rights Act, coalition districts are not. The court held that the law was not intended to protect political alliances of different racial groups, and that it had wrongly decided back in 1988 that such districts were covered by the Voting Rights Act.
The new ruling means that when Texas drew its coalition districts in 2021, it impermissibly used race and ethnicity as the predominant factor in drawing the boundary lines. That makes those four districts unconstitutional because they violate the Equal Protection Clause of the Fourteenth Amendment, the “one person, one vote” standard—meaning they must be redrawn.
That wasn’t the only problem with the 2021 redistricting.
In 2022, the Census Bureau admitted it had made major errors in the 2020 Census and had undercounted the population of Texas by over half a million residents, or close to 2%. Not only that, but Texas has had one of the fastest growing populations in the country over the five years since the census, adding over two million residents to the state.
Congressional districts must be as equal in population as possible under applicable Supreme Court precedents. Yet the census mistakes and the huge population growth have distorted the state’s 2021 congressional districts since they do not take those factors into account.
As a result of all of this, a new redistricting plan has been drawn to fix these problems. That plan also happens to favor the GOP in five new congressional seats.
Bear in mind that political gerrymandering, as opposed to racial gerrymandering, is perfectly constitutional and has been going on since Massachusetts Gov. Elbridge Gerry first engaged in such behavior in 1812.
A vote on the new map was scheduled for Monday, Aug. 4, in the current special legislative session, but Democrat legislators in the state House fled the state to avoid the necessary two-thirds quorum for the legislature to conduct business.
Their behavior represents the very antithesis of the democratic process: they are preventing the legislative body that represents the voters of Texas from being able to fix the racial discrimination that occurred four years ago when the legislature thought it had to draw up coalition districts to comply with the Voting Rights Act.
Contrary to the discrimination claims they’re making in the press, it is these errant Democrats—not Republicans—who think there is nothing wrong with judging how people will vote based on the color of their skin and who want to preserve the racist redistricting.
Of course, Texas Democrats have done this before, the last time being in 2021, when they wanted to prevent a vote on commonsense election reforms like requiring an ID to vote with absentee ballots. That requirement eventually passed and was challenged in court before being upheld by the same Fifth Circuit as a reasonable and nondiscriminatory requirement.
It was after the 2021 walkout that the legislature implemented new rules subjecting absconding legislators to possible arrest and a $500-per-day fine. On Aug. 3, Gov. Abbott issued a statement in which he cited a 2021 opinion from Paxton (Op. No. KP-0382) and threatened the fleeing Democrats with arrest, saying he would remove the “missing Democrats from membership in the Texas House.” Abbott says he can fill such vacancies under Art. III, Sec. 13 of the Texas Constitution.
Abbott can fill vacant seats by calling a special election. But as Paxton’s opinion outlines, that can only occur after either the attorney general or the district attorney “of the proper county” initiates a lawsuit against the absconding legislator and a court determines that the legislator has “abandoned” his office. Paxton has said he will initiate such litigation if the legislators don’t return to Texas by Friday, Aug. 8.
There’s no way to predict whether local judges will conclude that any of these legislators, who are temporarily in places like Illinois, have “abandoned” their seats. But in the meantime, Abbott has ordered the state police to find and arrest those Democrat lawmakers.
Abbott issued another warning to these same legislators. Based on reports that “absentee Democrats are soliciting funds to evade the fine they will incur under House rules,” Abbott says that the legislators and those providing them with funds may be committing felonies, citing Texas Penal Code § 36.02 on “Bribery.”
That statute has very broad language, making it a crime if a person “intentionally and knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another: (1) any benefit as consideration for the recipient’s decision, opinion, recommendations, vote, or other exercise of discretion as a public servant, party official, or voter.”
Here, the legislators are receiving a benefit—room and board, and money to pay any fines imposed—in exchange for their refusal to appear at the special session and to vote on the new redistricting map.
Yet another meritless action has occurred in this melodrama. On July 29, four Democrat senators sent a letter to the U.S. Office of Special Counsel claiming Assistant Attorney General Dhillon’s letter violates the Hatch Act as “partisan political activity” that has the “explicit goal of electing more Republicans.”
This claim is ridiculous since the grounds offered by Dhillon—the Fifth Circuit decision—are well within the general jurisdiction of the Civil Rights Division to enforce federal voting rights laws. Dhillon’s action is no different than many prior DOJ letters and actions over redistricting issues that affected elections.
All this is, of course, playing out in real time day-to-day. The special session of the Texas legislature called by Abbott will be expiring soon. But under the state’s constitution, if that happens without enough legislators being rounded up by the legendary Texas Rangers to hold a vote on the new redistricting plan, Abbott has the right to call another special session and another and another—as many as he needs to get this done.
Probably the best comment on the shenanigans of these Democrat legislators is Abbott’s chastisement for fleeing the Lone Star State: “Real Texans do not run from a fight.”
If these Democrats had been around at the time of the Alamo, they probably would have fled out the back gate and run for the hills.
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