Texas' redistricting gamble

Matthew and Eleanor are joined by Kareem Crayton, from the Brennan Center for Justice, to look more closely at Texas' rare midcyle redistricting.

Episode Transcript

Speaker 1 (00:23):
Hello and welcome to the trib Cast for Tuesday, July fifteenth.
I'm Eleanor Klibanoff Law and Politics reporter, joined as always
by editor in chief Matthew Watkins.

Speaker 2 (00:32):
Hello, how are you doing well? Just got back last
night from Mexico City.

Speaker 1 (00:37):
Well, yeah, that's a that's a better location than Texas
has been for the last couple of last couple of days.
Much cooler, yes, yeah, temperature less humid and maybe we
yes yeah. Well you know, Matthew, when you I do
have a bone to pick with you, because when we
discussed me becoming the law and politics reporter, I thought

(00:58):
I had five years until I had to start caring
about redistricting.

Speaker 2 (01:04):
Well, you know that was very naive of you.

Speaker 1 (01:07):
I thought the rule was every ten years, and so
I thought five years from now, who knows, maybe I'll be,
you know, a reclusive billionaire by then. I wouldn't have to,
you know, dig in on redistricting. And now here we are.
It is the middle of the decade. I have accepted
this job, no takebacks, and we are getting into redistricting.

(01:27):
So really excited to dig in on that issue today.

Speaker 3 (01:33):
Yes, very.

Speaker 2 (01:36):
Just the topic that you want to learn with like
a very short notice on the fly, complicated at all.

Speaker 1 (01:42):
No, absolutely not, which is why we're extremely excited to
have a guest who knows this issue backwards and forwards.
Kareem Creighton is Vice president of the Brennan Center for Justices, Washington,
d C. Office, and a scholar on the intersection of law, politics,
and race. During the twenty two ty redistricting cycle, he
advised nearly a dozen local jurisdictions, commissions and legislative caucuses.

(02:05):
Previously served as executive director of the Southern Coalition for
Social Justice, where he hired and trained a litigation team
to argue in two key jerrymandering cases before the US
Supreme Court, and, most relevant to us, served as chief
of staff and special counsel to the Alabama House Minority
leader during a special session on redistricting. He also helped
create a video game about redistricting, which we want to

(02:27):
talk about. Kareem, thank you for joining us. Gelighted to
be with you. You know, this is an issue that
I know you guys think about in the middle of
the decade. You guys think about this all the time,
you know, Just briefly tell us a little bit about
your experience in Alabama, you know, with their redistricting special session.

Speaker 3 (02:49):
Sure happy to do that and again thanks for having me.
I am a native of Montgomery and got into this
in part because redistricting in the nineteen nineties was something
that changed politics in our state. So I have a
tie to the place in part because a new member
of the House Democratic Caucus, and this was outside of

(03:11):
the nonpartisan work I had done, had taken over a
very young member who mixed things, hadn't done districting before,
took over and was thrown into a middle of a
session to deal with a Supreme Court case that Alabama
had to remedy. And so my commitment to him was, look,
I'll work for a year, We'll work through the special

(03:32):
session and anything else that comes up. What anything else
turned into was this special session dealing with redistricting, a
governor that found himself drummed out of office because of corruption,
and a Senate because the prior Attorney general went into
the Trump administration only to be fired. So a lot
happened in that time, but the process for redistricting was

(03:56):
one that definitely, you know, was very much Alabama on brand.
I think other Southern states sort of have some of
this too, but Alabama takes a particular version of doing
what it wants to expite federal order. So the long
and short of this story is it's a Republican supermajority
that decided that it was going to ignore African American

(04:17):
politically by the federal to remedy it, and they fought
tooth and nail on doing it the way that they
wanted to without public input, et cetera. There was it
turned out a filibuster. We can do that in the
state legislature that tried to slow it down. They got
what they wanted anyway. But it was the time before

(04:41):
the current fight about redistricting in Alabama, and it really
was exactly what unfortunately, the legislative majority supermajority is keen
to do, do what they want and force the federal
government to tell them otherwise. And as you saw this
time around in twenty twenty, I was in another capacity
the offering some advice to the legislative minority, some of

(05:03):
the same people from whom I worked before, and the
Republican majority said, well, we're just going to do it
the way we want and go and see us. And
so they got sued and went through extra innings, and
they're still fighting millions of dollars later out of taxpayer
money to fight a case that they were definitely going
to lose. We told them they were going to lose

(05:25):
the day they drew these maps. But that's sort of
the story of redistricting I think around the South right now,
and it raises hard questions now with politics at the
national level, that leads to even more uncertainty about the law.

Speaker 1 (05:37):
Yeah, that's interesting. I mean, a special session on redistricting,
an attorney general eyeing a role in the Trump administration,
governor on corruption. You know, I don't think I don't
know that we're going to see echoes of that here,
but you know, certainly we're you know a lot of
similar similar notes playing in Texas right now. So I
want to sort of just briefly and go over like

(06:00):
a brief history of redistricting, and Kareem you jump in
when I get off the rails on this. You correct me,
Matthew as well. I know you've covered this issue. But essentially,
right every ten years we do a census in this country.
Once we find out who lives where, states redraw their
electoral maps. So that we have roughly the same number

(06:20):
of people in every district. These maps are often drawn goofy,
looking to accommodate, you know, a range of different goals.
Starting the mid sixties, with the Voting Rights Act, there's
a law basically saying you cannot, among many other things,
saying you cannot draw these districts in a way that
dilutes minority vote, whether that's by putting everyone in one

(06:44):
district altogether, or by you know, diluting them so much
that their vote doesn't right to the level.

Speaker 2 (06:51):
The idea would be, if you have a population of, say,
black voters in an area in the South, you can't
put all the black voters in one districting in order
to make it so that you know, the amount of
power is you know, only in that one legislative seat,
as opposed to the grace, or spread them out into
so many districts that they're so deluded that they can't

(07:13):
be elect there, you know, a member of their choice right.

Speaker 1 (07:17):
And historically this is something Southern states among others, but
Southern states in particular have been quite bad at drawing
those maps in a way that complies with Section two
of Voting Rights Act. For a long time states head
to states like Texas and Alabama had to get their
maps pre approved by the federal government. That's how bad

(07:37):
they were at this. And every single time Texas has
redistricted since the Voting Rights Act went into effect, at
least one of their maps have been found to be
not in compliance with the Voting Rights Act. That's sort
of the backdrop to all of this is that. All right,
so far kareem?

Speaker 3 (07:53):
I think so far? Are you there? I always like
you have one person, one vote came to us because
of a case authored by Justice Brennan, from whom the
Brendan Center is name. But you're absolutely right about the
general thrust of redistricting.

Speaker 1 (08:05):
Okay, great, So then moving on from there where we
are in Texas right now. You know, we drew maps
in a little bit weirdly this time around, because the
census was delayed because of COVID and other reasons. We
drew our maps in sort of settled on them in
twenty twenty one. In Texas, the legislature draws the maps.

(08:27):
Other states do it differently. Those maps immediately faced.

Speaker 2 (08:32):
Oh let me let me just pause right here for
a little bit of background, Like one you know, As
you mentioned, this was done in a special session as
opposed to the regular session because of the census being delayed,
but also it was coming in a very interesting time
politically for Texas, which was we were not that far
off from the Bete Rourke election in twenty eighteen, where

(08:55):
Texas was looking like it was really trending in a
much bluer direction. You had seen you know, presidential election
margins go from sixteen percentage points Republican victory to nine
percentage point Republican victory to six percentage points veto almost
wins there. And so one of the things that lawmakers

(09:16):
did during that session was, instead of really pushing to
increase their margins in the various bodies that they drew,
we're talking about congressional in this one, they went toward
a more an incumbent protection map, which was essentially, you know,
Texas got two new seats because of population gains, those

(09:38):
went to Republicans, but everywhere else they sort of focused
on shoring up Republican majorities so that the people in
the districts and the parties in power currently there would
essentially be safer as the district went on. As opposed
to you know, really trying to gain three, four or

(09:58):
five more Republican seats in that map.

Speaker 1 (10:01):
So it is it is a somewhat sort of this
is conservative map in the not both. It is both
a conservative map in that it will lead to Republicans
being elected and a conservative map in terms of not
putting their incumbents out on a ledge.

Speaker 2 (10:16):
Right, because there were circumstances, you know, you could look
particularly like in the state house maps in Dallas County
where it looked like maybe they got a little too
greedy the last time, right, and they drew a bunch
of different districts that by the end of the decade
had all flipped to Democrats in a way that you know,

(10:36):
actually in twenty twenty, people thought that Democrats might have
been able, like in the lead up to that election,
thought that maybe they were going to flip the House.
And so, you know, I think you looked at what
they were doing. If you knew Texas politics, you saw
they're trying to prevent a situation where they're going to
be in trouble in twenty twenty nine to twenty thirty,

(10:57):
as opposed to let's just make these massive games. In
the early part of the.

Speaker 1 (11:02):
Decade, right, And I mean a lot of this is
happening in every state, right, Koreen. Can you talk a
little bit about like every state is, no matter who,
whether it's run by blue or red, is trying to
draw a map that benefits their party.

Speaker 3 (11:13):
Right. Well, it's important to note a couple of things. One,
you're right, states differ about how they draw maps. So
Texas takes the more political approach, where the state legislature
draws the map, and you know, if you've got the
votes on your side of the aisle, you get usually
what you want apps in the lawsuit. There are other

(11:34):
states like California Arizona that actually draw maps by citizen
independent commissions, and those actually tend to take a much
more i think, focused conversation about what the community wants.
So people come and present in a nonpartisan way, what
they think the best communities are to kind of group together.

(11:55):
And often not always, but most of the time, the
states will say, and we don't incumbency or partisanship as
a sort of fact that we're going to take into consideration,
and those tend to draw districts that those groups tend
to draw districts that are more competitive. One point. Don't
mention about Texas, though, but you're right, there are some others.
There are blue states that are driven by partisan you know,

(12:19):
legislative driven maps, that do tend to produce maps that
tend to favor their party. But the one thing in Texas,
it's worth noting it did grow significantly, actually more than
almost every other state. But it's important to note that
growth wasn't uniform across the state. And the mistake to
that that's easy to miss in this is that that
growth came within communities of color, and it turns out

(12:42):
that you didn't see a consummate growth, a concurrent growth
in the representation of those communities in the districts that
Republicans drew this time. Now, it's also fair to say
the caveats one. Not all communities of color vote, you know,
one way or the other, but we know where they live,
and in those places where they live, you didn't see
a growth in the number of districts in the way

(13:03):
that you would have expected. So yes, it's probably fair
to say, you know, Republicans didn't take the max plan
that they could have drawn, but they certainly tried to
take advantage of every bit of extra territory that they
got because of these new districts there before do they
take everything possible to know? But it is also key
to know Texas is continuing to grow, and so there's

(13:25):
always this question about drawing maps that make sense in time.
A but five years, ten years from now, as you
point out in Dallas, for example, you see such growth
in the metro area and including right the suburban counties
where you actually see drastic change and just who mix
up the district that you can't necessarily cut your margins
that close and expect it to perform the same way,

(13:47):
you know, years after you draw the maps. Yeah.

Speaker 2 (13:50):
One of the key stats that opponents of the current
maps point out was that ninety five percent of the
state's population growth was by communities of color in Texas,
but there were no new districts drawn, you know, for
to represent those communities that in that time.

Speaker 1 (14:10):
Right, the two new districts that were drawn were in
white dominated, were white dominated and Republican dominated. So as happens,
almost like clockwork, right, Texas created these maps in twenty
twenty one in a special session, as you said, and
they face a lawsuit by a group at the time

(14:31):
the Department of Justice, as well as a group of
plaintiffs representing voters of color, saying we've been discriminated, you know,
these discriminated against voters of color, and that case took,
as these do, close to four years to move through
the legal system, culminating in a trial last month in
El Paso, where and this is important, the plaintiffs argued

(14:55):
that these maps were drawn sort of based on race
to discriminate against voters of color, and the state argued
repeatedly their main point was these were not drawn based
on race. They were drawn almost entirely based on partisan goals,
Which brings us to, you know, a couple of weeks ago,

(15:16):
where we start hearing rumors that the Trump administration is
pushing Texas to do a rare but not unheard of
mid decade redraw of the congressional maps to try to
get a couple more seats in the midterm elections.

Speaker 2 (15:35):
The idea here being, according to reporting of you know,
representing Trump's thinking, essentially that this is going to be
a hard year for Republicans nationwide. There's a decent chance
that Republicans will lose the House, and one way to
protect themselves about doing that is drawing more Republican seats
in Texas that could help help the Republicans maintain the
national majority.

Speaker 1 (15:56):
And now, to be fair, congressional Republicans who enjoy their
districts that are drawn, you know, to support their reelection
not thrilled by this. According to reporting, you know, we've
heard that there's been some some real anxiety about this.
There was a big question about whether or not Governor
Greg Abbott would take this up in the special session.

Speaker 2 (16:13):
Yeah, I mean, it's you talked about how there's precedent
for mid decade redistructing in Texas. That last time that,
of course happened, was in two thousand and three. It
was pushed by Tom Delay. The difference between then and
now is what happened right before that two thousand and
three redistructing was Republicans one control of the Texas House,
which gave them more power to draw the lines as
they saw fit.

Speaker 1 (16:34):
For the first time like in modern history.

Speaker 2 (16:37):
Right this time, the same people who drew the maps
in twenty twenty one are in charge are in charge now,
and so basically what they're being pushed to do is
to change the maps that they chose for a reason,
the reason that we sort of already described before incumbent protection.

Speaker 3 (16:55):
Long term.

Speaker 2 (16:55):
Of course, there have been some things that have changed, right.
A lot of the growth in Texas has been as
noted in communities of color in the suburbs. The most
recent presidential election, a lot of those communities went a
little bit to the right. They still many of them
still voted Democratic, but maybe not in the same margins

(17:17):
along the border, for example, which could possibly just the
politics have changed a little bit. Right in twenty one,
I think a lot of people were still thinking, right,
the demographic, the racial demographics in Texas are changing in
a way, particularly with the Hispanic vote, that would seem
to suggest that the Texas is trending in a blue direction.
I think the twenty twenty four election maybe through some

(17:41):
of that into question, particularly with the Hispanic vote, of
maybe that's not the case. Maybe the Hispanic vote is
actually going to turn out to be more conservative, more rightly,
more Republican than maybe people had thought in years past.

Speaker 1 (17:55):
Right, right, I mean, before we get into like the
DOJ letter and all of that, Koreem, what do you
make of this, just this push by the Trump administration
to try to like get squeeze a few more, a
few more seats out of Texas.

Speaker 3 (18:07):
Yeah, it is in some ways. As I say, I
think you're right about it being rare, but exceedingly so,
because right the story from twenty twenty twenty twenty one. Sorry, yes,
the last time around, Sorry I've lost track a few
years now, it was that Republicans had taken over, but
the plan that they were undoing was a plan drawn

(18:30):
by courts, and this is one, as you rightly point out,
that was drawn by the very people who are actually
trying to redraw it now. Looking for the Trump administration
to be asking them to do this, it definitely means
that they see the risk. And it's kind of odd
because if you're looking at this, I just did a

(18:51):
rough tally of the members currently serving in Congress from Texas.
You're about twenty four or so. The thirty eight members
who are Republicans, more than half of them, close to
like fifteen of them are in there at a most
their second term of office. That means that they were
the beneficiaries of the readon that was done last time around,
and as you rightly point out, there's a real risk

(19:12):
to those people if it get their districts jumbled and frankly,
to get more seats anywhere, you're going to have to
radically change a lot of lines. This isn't just a
surgical adjustment here or there. And so for those people,
you're asking them to appeal to an entirely different electorate
then before, probably not with a lot of money, probably
with the winds not flowing at their backs. So that's
a real challenge. I think the bigger question for the

(19:35):
question about why the administration is pushing this just now
sort of raises a weird uh. I think possibility that
if they think they've got to squeeze this much out
to get one or two seeds, do they think that
they can operate for another two years of this term
with just a majority in Congress of one or two seats.
I mean, it's a big risk. And of course, even

(19:56):
if they get what they want out of Texas, it's
probably going to lead to some sort of lawsuit. And
so then the question is is there going to be
some doubt in the one or two seats that are
in the House of Representatives If you know this happens
nationwide where people are picking off seats hoping to kind
of preserve the majority that they want. It's really I
think it's not the best way of forging national policy,

(20:19):
but it may for them be their only way out
of continuing the process that they have. And I guess
said the other that they set forth in terms of policy.
The only other thing I'd offer here is thinking about
where the electorate is since R twenty twenty one January fifteen,
or yeah, even more so since the last election. You know,

(20:41):
we've had a lot of policies that a lot of
people say that they weren't anticipating, even people who voted
for their president. So I think the question if you're
thinking from the state's perspective, how to craft a map
that's going to perform the way that you do. You're
five years out from the last census. You're also in
a really volatile time about where voters are and just

(21:01):
how they think about the president, how they think about
the state leadership, etc. You're playing a big gamble. I
can't remember if gambley is legal in Texas, but it's a.

Speaker 2 (21:09):
Real question very much is not famously.

Speaker 3 (21:12):
Not in Alabama either, But yeah.

Speaker 2 (21:15):
Well, okay, and you probably haven't seen this because it
was tweeted out by Jake Sherman right before we sat
down to record. But President Donald Trump, according to Jake
Sherman's reports, told Republicans on a call today House Republicans
that the GOP will seek five new red seats in
the midterm reistructing effort in Texas. Right now that the

(21:37):
number is twenty five to thirteen. If they sought five
new seats, that would be thirty to eight, which you know,
I mean, Texas is a very red state. It is
not that red of the state, firstly geographically exactly. I mean,
that suggests to me that they would be taking a
huge risk both politically and legally and trying to get

(22:00):
that across well.

Speaker 1 (22:02):
And I think, like, I mean, to your point, Kareem,
these are not there's not so much as like you
can't do this so easily that you can say, well,
we'll make this one person a little bit more vulnerable,
but make this person.

Speaker 2 (22:12):
Not as well.

Speaker 1 (22:13):
Like this is a wholesale redrawing that you're talking about
that could result in making I mean, could potentially.

Speaker 3 (22:19):
Be a house of cards.

Speaker 1 (22:20):
Right, you can get overconfident, you weaken everyone. And I mean,
certainly you know Texas is a red state. But like
the urban centers remain very blue. There are some limitations
to how tightly you can draw this.

Speaker 2 (22:34):
Matt, Yeah, And I think it's just worth pointing out
that if you talk to Republicans privately right now, a
lot of them feel this risk too. You know, I'm
sure there are people who think this is a good
idea Republicans. I have not talked to any of them.

Speaker 1 (22:51):
And if you're outside of Texas or you are you know,
more on like the net looking nationally short, like, let's
take a risk and see if we can get a
couple more seats. If you're a text in sort of,
I mean, if you certainly hold a district, but also
if you are thinking like you know, I like the
person who represents me. I would hate to lose them
to a Democrat. Like why do you care about this risk?
I mean we should say, like there is huge upside

(23:13):
to President Trump of getting even you know, one or
two more seats and holding onto that majority. And we
talked about the legal threat of course, like this these
new maps will be challenged in court. We will likely
have another election before that. I mean there's a question
of like, are we doing this so close to the
next election that it could potentially if they can delay

(23:34):
it just long enough. But realistically, the big threat is vote,
you know how people vote, more than I think the
legal threat of it getting blocked in time.

Speaker 2 (23:46):
But can we talk a little bit about the changing
legal climate in which this will happen in right, because
I think it now seems like maybe this trial that
we went through could possibly be moot. Maybe I'm wrong
about that. You can please tell me if I am.
But if there's a new district what the judges said,
did they even? Yeah? But I mean the legal arguments

(24:10):
were a bit different this time than they have been
in the past, and I believe that's because of a
couple of Supreme Court cases that have happened since the
last time Texas redistricted. Can you tell us a little
bit about just what has changed since the last time?
I guess since the the twenty eleven maps were drawn
and we went through that whole legal process.

Speaker 3 (24:32):
Yes, indeed, and thank you that was the years sort
of you know, at some point together we look at
this eventually discourses. But yeah, since twenty eleven, right, we
had a very different Supreme Court. That's the sort of
first thing to say, because that really if you think
of who was on the court then versus now. The
folk from on the court in the twenty eleven was
Justice Kennedy. He is no longer on the court. Interestingly,

(24:54):
he was the one that despite deciding that there shouldn't
be a constitutiontional bar to mid dec eight redistricting, they said,
Texas can do that if it wishes. It did. That
is the court, driven by Justic Kennedy, find a Section
two violation in Texas's map which required Texas to go
back and do the work anyway, so right, achieving in
without the you know, kind of broad legal theory that

(25:17):
at least the plaintiffs had asked for. Just Kennedy is
no longer there, And in fact, you've got a radically
different court than it used to be, one that has
six members that are considered quite conservative, three of whom
are appointed by this current president. And so since that time, though,
before you even get to you know, what this court
might do, even given its differences, you've got changes in

(25:38):
the law. You've got Justice Kennedy never let it be
forgotten that, you know, took us on the path about
understanding potential claims that might exist on partisan Jerry mandering
only to say in one of the cases, you know,
I sort of had involvement in to say, oh, we
don't think that there's a constitutional limit in partisan jerry mandering.
And by the way, I'm retiring. So he leaves the

(25:59):
court to say, right, oh yeah, this tease of like
power having actual leverage to stop partisenteria manager, he says,
he goes away the same time. We have, as you
all suggested earlier, more effort. In the assault on the
Voting Rights Act, Justice Kennedy joined a majority written in
a case written by Chief Justice Roberts, saying that Section

(26:20):
five of the of the Voting Rights Act has you know,
significant problems and therefore can't continue to be in force.
So it lets places like Alabama and Texas off the
hook to say you review to have your maps drawn.
So that opens the door to what you offered about
Texas's justification now for its maps. A, we can draw
what we want because we don't have to get permission

(26:41):
before we put it in place. B when we do
get challenge. If we do get challenge, it'll be years
after we get new people in office, and we'll be
able to say it was partisanship. It wasn't race, and
so we find ourselves in a space where it's a
lot more hostile than it used to be. Here's the
extra little touch that you get in the current era.
We now have cases that try to pull back the

(27:06):
what I think was a sort of sham of an
argument that again Justice Kennedy, I'm going to get back
on him, doesn't get enough criticism for this dance that
he did. He said, well, I'm going to vote to
get rid of for the moment, Section five. But worry not,
there's Section two litigation that you can go to court
improve cases of discrimination to stop bad plans. Well, notwithstanding

(27:28):
the fact that it takes a lot of time and
money to get that done, we now have an assault
actually that the Fifth Circuit, where Texas is located, is
perfectly involved in. That says, well, we're now going to
ask whether or not it's even within our understanding of
the Voting Rights Act to allow private parties to sue
to vindicate their rights against discrimination. Now, I will tell

(27:51):
you from the get go, in nineteen sixty five, nobody
in that place, including people who disagreed with the Voting
Rights Act, would have agreed that only the Justice Department
could bring lawsuits, surely they are one of the parties
they could, But the idea was to have private attorneys
general throughout the country to be able to say, on
behalf of voters, here's what we think is a violation

(28:14):
of the right against discrimination. And that has been the
law since nineteen sixty five. Only now because of the
case at starting in the Eighth Circuit, the Fifth Circuit
has now agreed with sort of this argument that well,
maybe we should rethink whether or not private parties should
bring their claims. This actually would pull the entire rug
under from under the Section two litigation strategy, because it

(28:37):
leaves only the Justice Department, which we now know has
gutted its voting rights section except apparently to protect white voters.
That's another conversation for another day, but that if that's
the only place that you can get any kind of relief,
you're limiting work to the number of people that are
available to pull these lawsuits together and a political will

(28:57):
to pursue them. That's now really what Texas among other states,
is now arguing that the Court should actually consider seriously.
And I think it's an open question because we don't
yet know what those six members of the Court are
gonna say about again something that even when he was writing,
Justice Thomas never really talked about that, and he wasn't

(29:18):
a fan of the Voting Rights Act. But we just
have to see what happens. But it's a really scary
time if you're thinking about what we all expected to
be one of the sort of bedrock foundational principles of
civil rights law that's now being pulled from under us.
And again, I take it back to this I think
empty promise that came from Justice Kennedy when he told

(29:40):
us that, well, the Voting Rights Act still remains a
valid tool of enforcement because you have Section two. There's
an open question as to whether we will right.

Speaker 1 (29:50):
And I mean one of the cases I think you're
referencing is this the Pedaway v. Galveston County case at
the Fifth Circuit, which plays a big role in this
current issue with the DJ also speaking of the DOJ,
sort of political will you know, as I was saying,
like this was such a this was very much a
political question of will Governor Greg Abbott take up the

(30:11):
President Trump's pressure to redistrict in this special session that
sort of got an added layer of legal cover in
last week, Last time is a cruel mistress. Last Monday,
the Department of Justice issued a letter to Texas informing
them that four of their districts for their congressional districts

(30:34):
were unconstitutional. Three of them because their coalition districts, meaning
you know, the minority groups are represented by the majority
of the minority groups are from different minority groups. They
put together different minority groups to create a majority minority district.
That's possibly the most confusing explanation. Google coalition districts if

(30:56):
that wasn't clear. And then the fourth district was sort
of created because of two of those coalition districts. And
so they said these are unconstitutional, under citing this Pedaway v.
Galveston County case from the Fitth Circuit and basically directing
Texas to redraw their maps because it's unconstitutional. Texas then
Governor Greg Abbott said, you know, in light of these

(31:18):
constitutional concerns, I'm going to add redistricting to the special
session call. And this raised a lot of questions for
a lot of people. The plaintiffs in the ongoing El
Paso case feel like Texas has contradicted itself because they
argued in their you know for a month of trial
that these lawsuits, I'm sorry that these districts were drawn

(31:41):
on race blind grounds, they did not consider race, and
that the state of Texas has long held that coalition
districts are not sort of a justifiable way to draw
a map. So they felt like now Texas was sort
of acquiescing or surrendering to the government's argument. Texas came
back and said, essentially, we don't believe these maps were

(32:02):
drawn on race. You know, they were drawn on race
blind grounds, but we also would like to redraw them.
And you know, adding something to a special session call
is not the same as agreeing with it. Of course,
Governor Ibbit saying in light of constitutional concerns, sort of
there's a little bit of muddy water here, but either way,

(32:23):
these you know, gives them an opportunity to redraw these maps.

Speaker 3 (32:28):
I just offered, Yeah, what's silly about this, and really
quite rare is for the Department of Justice to weigh
in and pronounce something un constitutional that hasn't been ruled
on by the Supreme Court of the United States. This
is one panel of a circuit, one circuit in the country,
and they've given a take that by the way right
flips their own precedent on this topic. It seems weird

(32:53):
that the right, the State of Texas, right, the sovereign
State of Texas, would all of a sudden find it
absolutely necessary to follow what is less than a complete
or final statement of what the law is that comes
from a justice department that you know, again interprets voting
rights law. That's you're not going to hear that every day,
So you know, you do sit and wonder whether the

(33:14):
fix is in on sort of an understanding or winkin
or nod about how they want to open the door
to this sort of redrawn But it is quite rare
to see the Justice Department way in to make such
broad pronouncements. None of this has been settled, and in fact,
there's plenty of belong on the other side that says
there's nothing unconstitutional about creating a district where people of

(33:35):
color happen to be the majority of the population, particularly
in a say, jurisdiction like Houston, where the population actually
looks like the districts that were drawn. So it's an
interesting dynamic where you see again the dance between the
state all you know, all of a sudden, thinking well,
clearly if the federal government told us to do what
we have to where that's never been anything in state

(33:57):
of Texas or for that matter, Alabama has sort of
stopped in its tracks to say, well, we've got to
rethink this thing because the federal government has suggested something
to the contrary, even frankly, when the Supreme Court has
told them to do it.

Speaker 2 (34:08):
Right, I want to take step ask a big picture
question here, right, because one of the things that's sort
of happening, particularly in the South, but not only in
the South, I guess, is that there is a strong
racial dynamic to our politics right the you know, in
in the South, the Republican Party is overwhelmingly white, Black

(34:34):
voters overwhelmingly vote Democratic. Hispanic voters have been a little
bit shifting back and forth, right. But I'm just curious
kind of how you think through this idea of you know, Texas,
in this lawsuit, whether they're now making this case in
the past, made the argument that they made their decisions
based on how to draw the lines based on politics

(34:54):
and not race.

Speaker 1 (34:56):
Specifically Attorney General Ken pax And saying we drew these
to make America great again.

Speaker 2 (35:00):
Exactly, And how I wonder if you could just talk
a little bit about that kind of how difficult it
is to sort of separate those two things, and has
it become more difficult for plaintiffs in these cases seeking
to overturn these maps to make the case that, whether
it's political or not, you are diluting the power of

(35:24):
black voters of Hispanic voters by drawing the districts these ways.

Speaker 3 (35:28):
Okay, well, let me start with the news flash. Politics
in the South has always something to do with race.
I know you're going to be shocked to hear that.
It's just the fact of life, right. What that effect
is and how it kind of plays out in policy,
that's a different conversation. But I think one of the
challenges you're rightly pointing out is, Look, the law is

(35:49):
really messy when it comes to thinking about that truth
that politics and race. It particularly in the South, I think,
frankly everywhere to some degree, but in the South it's
most pronounced because every you know, you name me the policy,
I'll trace back to some narrative that sort of shows
the way in which race has figured into why the
policy was drafted or why the policy had to change.

(36:11):
That's no less true with redistricting than anything else. The
law unfortunately has sort of given us this fiction to
suggest that one can either turn off the sort of
racial lens or only think about partisanship in a world
where we know, like think back to the Texas white primaries.
We call them white primaries for a reason, right, it
had a political consequence. There was only you know, one

(36:35):
party in town where you actually had the opportunity to
elect a candidate, but it was only allowed that whites
participating in it. And the court told us in you know,
the nineteen thirties to the fifties, that's illegal or unconstitutional.
The same is true here. But because our law sort
of treats them as different categories partisanship and race, it forces,

(36:55):
in some ways lied against to kind of frame arguments
and theories around a world where it's only thinking about
X or y, when in fact they're together. The complicated
part of this comes forward in these cases called the
racial gerrymanderin cases where the court is presented with this
claim that, well, the state took race too much into account.

(37:15):
What too much is we don't know, but the court
has told us if you draw really weird lines, and
the only way that you can explain it is race,
then that's unconstitutional. Even in the nineteen nineties where Justice
Kennedy was around, he was presented with cases where I
could give you a compelling argument for why partisanship was
the result that drove the crafting of those maps just

(37:38):
as much as race were. Because African Americans do vote
very heavily for Democrats, and whites in most of the
South tend to vote Republican, there's an instance where that
gets more pronounced than others, and those are the places
where discrimination becomes the most volatile, I think factor to
take account of where you see crossover with white sometimes

(38:00):
voting Democrats and sometimes voting Republicans, or as you point out,
Hispanics moving one way or the other, that might be
a lot more complicated. But where polarization is sort of
the name of the game, that's you're not going to
be able to divorce those two. And I think in Texas,
depending on where you are in the state, you can
make much more of a claim about polarization based on

(38:22):
race than anything else. And so in some ways it's
a bit of a fiction to try to sort of
distill those but the law requires us to do it,
and I think that's why Texas is in the ridiculous
position now of trying to make the argument that oh, yeah,
it was all a party. It was like, well, if
you look at your you know, Republican roster, you're not
seeing many people of color. And so then the question
gets to one that I think is most relevant, which

(38:45):
is where's the growth in the state and are we
seeing a consummate uptick in growth of you know, districts
where people from those communities can direct opportunities for who
gets elected versus others, and if you're not seeing that,
and I think Texas this is a key case of it,
particularly where you've seen cities crafted like you know, the
city of Austin, I don't need to tell you has
been you know, sliced in dice, you know, within an

(39:08):
inch of its leagh. But that's all in service to
keeping a majority of supermajority the way that it is.
But that doesn't change the growth in the in the jurisdiction.
I think that's the key thing to be thinking about,
and where that growth is is with people of color?

Speaker 1 (39:21):
Can I ask? Because I think there's also an argument
on the right that's like, you know, the voting Rights
Act was important. It was important during you know, Jim Crow,
during the civil rights movement. Are we just going to
have this go on forever?

Speaker 3 (39:31):
Right?

Speaker 1 (39:32):
And like what do you sort of say to that,
to the idea that, you know, maybe this has served
its purpose and we can all move on into post
racial America.

Speaker 2 (39:41):
Yeah, I'll just add on there. One of the things
they make in their document cases, they make in their
documents around this lawsuit is that the Texas legislature in
twenty twenty three was forty percent, to use their term,
non white right, which is significantly more diverse than the
US Congress.

Speaker 3 (39:59):
It is. And you know, it's funny that, right, the
result of that map is due to voting rights enforcement.
So it's kind of weird to make the argument, as
they did in the Shelby County case that undid the
Section five of the Voting Rights Tech. Well, look around you.
The world is much more diverse. We don't need this anymore.
And you know, Justice Ginsburg made the quite the strong

(40:19):
argument that, unfortunately was in the descent. When you're arguing that,
you know, the evidence that you're dry is evidence that
you don't need an umbrella in the middle of a
rain storm, and that's sort of, you know, silly thinking.
But I think the best evidence of this is just
looking at the way in which polarization as expressed in
politics plays out and where you're seeing instances, and you're
seeing it in plenty of parts of Texas where people

(40:42):
of color are voting one way and they never find
common purpose with white people who vote in an entirely
different way. That means that our politics aren't the kind
of coalition building adventures that we would expect, and where
we're even going after districts that look like coalitions are
sort of the name of the game. It really raises
a question about whether or not it's that you know,

(41:02):
kind of moment where we think everybody's come together and
decided to look on issues outside beyond race, or at
least in concert with other considerations. That doesn't seem to
be the politics as it's been played out in Texas
right now.

Speaker 2 (41:16):
I wonder another thing just to side from this brief
is that the state, citing the twenty twenty four Supreme
Court case Alexander versus South Carolina State Conference of NAACP,
they say, basically, the state is entitled to a powerful
presumption of good faith right when if you can't, you know,

(41:36):
if you don't have the strong proof either way, you
assume that the state is doing the right thing. Here,
we are going into this term where it looks like
there's a pretty good chance that they're going to redraw
these maps. There is also a lot of evidence sort
of just out there in the world that the political
motivations of this, or that the motivations of this are political,

(41:57):
you know, wanting to hold on to the twenty twenty
six US House in term elections. What do you see
like moving forward here? Do you see this because of
the legal climate we are in right now? Do you
see it as even if they do dramatically redraw these districts,
do you see it being difficult for plaintiff's civil rights

(42:21):
groups and everything's to fight these maps, to overturn these
maps in the future.

Speaker 3 (42:25):
Right It's a really good question. I would in fact
tie this in some ways to the prior question you asked,
what does it mean to be in a place where
you don't need a voting rights Act? What we have
right now? The case that you mentioned in Alexandria is
a court that seems to basically say, yeah, we shouldn't
question without a lot of compelling evidence, the sort of
good faith of state legislatures. Now you know that's in

(42:46):
the face of a lot of evidence suggesting to the
countrary that they weren't acting in good faith. But the
deeper question is, if a state is acting in good faith,
shouldn't you expect that the state be able to show
and prove what they're doing. Shouldn't there be an open
process that's where you see what goes in, Who gets
to present our arguments about why districts should be a
certain way, and you have people explain themselves. That's exactly

(43:09):
the opposite of what states like Texas engaged in and
their drawing of maps. At best, you'll have a hearing,
but it's a very quick hearing where people sit in,
they show up, they see a map, they vote on
the map, and that's done. You don't get public input.
You don't hear who behind the scenes gave advice about
what to do and why all that stuff. Because of
decisions that have been reached by a lot of the

(43:30):
federal courts at present, including in the Fifth Circuit, have
walled off that information from plaintiffs. And to my view,
I mean we say this in other context, if you
don't have anything to hide, why not show it. This
is a public proceeding that's supposed to benefit the public.
Right now, we're in a world where in a lot
of these cases, the state legislature has been entitled to
some crafted privilege that isn't contained anywhere in the constitution

(43:53):
that will prevent plaintiffs in these Section two lawsuits from
just even seeing who is in the room with you.
Not only did you get the elected member get the
ability to shield yourself from scrutiny in a lawsuit, anybody
you talk to would also be if the courts get
their way here, and that actually counteracts any suggestion that

(44:15):
good faith should be. In fact, this should be exactly
the place where in any other place in the law,
we would be really skeptical of taking at face value
what the state says after the fact. So, to my mind,
you would expect to see more open processes, more engaged
public comment, and actual explanation, which, by the way, is

(44:36):
what exactly happens when independent commissions draw maps. But the
state legislature could do this as well. But when they don't,
it defies logic to me to expect that we should
just take what you say is the reason you drew
the map without any evidence at face value. But that's
what Texas basically is.

Speaker 1 (44:55):
Arguing now, and certainly probably all of that is not
going to be improved by, you know, the speed at
which they're going to have to move through this process
in this special session.

Speaker 3 (45:04):
Yeah.

Speaker 2 (45:05):
I just want to veer back into the politics very
quickly here, because I think it's also worth asking the
question will Democrats participate in this process? Right? So folks
will remember from two thousand and three or you know,
other times where Democrats have left the state in order
to break quorum and make it so it would be
impossible to pass these maps. When I was in San

(45:27):
Antonio a few weeks ago speaking with two Democratic lawmakers
at a Tributne event, I asked them this, and they
both very strongly, strongly hinted, you know, I see no
reason why Democrats would ever even participate in this process. Well,
what is in it for them? It's interesting though, this
is a I don't think anyone is happy that this

(45:49):
has happened. But the situation has changed since then because
we had these catastrophic floods in Texas. Those have also
been added to the special special Special Session call both
flood relief and also like what can we do to
protect these communities going forward. There's all of a sudden
now something here in this special Session call that Democrats

(46:12):
are going to really feel like they need to be
a part of and make sure they can get through,
which in some ways hands Republicans a big bit of
leverage here in terms of how they kind of get
this across. It's just another sort of interesting thing to
watch as this process unfolds.

Speaker 1 (46:29):
Right and certainly, I mean I've heard from some Democrats
who say, well, the governor could do a lot of
this on flood relief just himself through executive Well he's not.
He's put it on the call, like you know, they're
going to have to be there if they want to,
you know, not sort of be forever painted with this
brush of like not supporting the flood relief exactly. Yeah,
so I do think that is like a layer even

(46:50):
no one else was, you know, no one could have predicted.
Of course, that has really amplified all of this. Yeah,
well special Session starts twenty first, you know, a little
less than a week from today, expecting a big redistricting
fight on that's going to involve you know, all levels
of government straight up to the President, and a lot

(47:11):
of eyes on that really really want to thank you
Kareem for joining us. This was a great conversation. You
can find the Trip Cast everywhere you get your podcasts.
Our producers are Rob and Chris and we will be
back next week.