With multiple news reports of Democrats making a push in Texas both at the federal level and at the state legislative level in light of gains the Democratic Party made in the state in the 2018 cycle, the next redistricting could play out differently than the last two redistricting cycles during which Republicans held full control of the process. This is a function of which bodies control the drawing of both congressional and state maps in the course of the process.
Understanding the Texas Redistricting Process1
That process begins with federal census population data being delivered to the legislature no later than April 1 of the year following the decennial census. After technical uploading and verification of that data, members of the legislature and other interested parties begin drawing plans. Bills to enact new state redistricting plans follow the same path through the legislature as other legislation.
Redistricting bills follow similar paths through the legislature as other legislation, although there are differences with respect to the particular maps being drawn. Congressional and State Board of Education district bills may be introduced in either or both houses, whereas state senate and state house redistricting bills traditionally originate only in their respective houses. Like other legislation, once redistricting bills are approved by both houses of the legislature, the bills go to the governor, who may sign the bills into law, allow them to take effect without a signature, or veto them.
If the state house or state senate redistricting bill fails to pass or is vetoed and the veto is not overridden by the legislature, Texas law requires the Legislative Redistricting Board (LRB) to meet within 90 days of the end of that regular session and, within 60 days of convening, to adopt its own house or senate plan. The LRB is comprised of the lieutenant governor, speaker of the house, attorney general, comptroller, and commissioner of the general land office. At present, all of these officials are Republicans with four of the five being elected statewide and their offices not on the ballot again until November 2022. Only the speaker’s office is up for election in January 2021 (by the members of the Texas house).
Significantly, the Texas Supreme Court has interpreted the LRB’s authority to arise not only when the legislature literally fails to act, but also when legislative redistricting plans are found invalid. As a result, if the legislature’s plan is vetoed by the governor and the veto cannot be overridden by the legislature, or if the plan is overturned by a final judicial ruling within the 90‐day period in which the LRB is given redistricting authority, redistricting for the state house and state senate becomes the responsibility of the LRB. If the legislature and LRB both fail to adopt a state senate or state house plan, a court will likely issue a plan to fill the void.
If the congressional or SBOE bill fails to pass or is vetoed and the veto is not overridden, the governor may call a special session to consider the matter. If the governor does not call a special session, then a state or federal district court likely will issue court‐ordered plans.
Outlook and Implications
At present most analysts are projecting the Republicans will hold the state senate and likely keep a narrow majority in the state house of representatives. However, many see a greater possibility than at any time since 2008 for the Democrats to win a majority in the state house of representatives (in 2008, the Republicans lost seats but retained a narrow 76-74 majority that subsequently grew and remained large until Democrats captured a dozen seats in the 2018 election to produce the current 83 seat Republican majority).
Should the Democrats take the majority in the Texas House of Representatives and elect a Democratic speaker for the first time in almost twenty years, there are obvious implications for redistricting in that the new speaker and Democratic caucus would exert greater influence on the drawing of all maps. In the case of state house and state senate maps, however, should the legislature and Republican Governor Greg Abbot not be able to agree, the process could be decided by the LRB, which in this scenario would almost certainly be almost all Republican members with the exception of the speaker’s office. Accordingly, the Republican Party would still have the stronger hand in drawing those maps. However, the LRB does not deal with congressional maps. Accordingly, in the absence of legislative and gubernatorial agreement, those maps likely would be drawn by the courts.
In reality, all the maps, whether state house and state senate or congressional maps, are likely to be subjected to judicial scrutiny. Nonetheless, a divided state government for the first time in a long time could lessen Republican influence on the ultimate final and judicially-approved maps. And that could have all kinds of implications at both the state capitol and in congress. For example, maps that produce less Republican dominance at the state capitol could be a boon to consumer protection advocates who seek greater regulation of an array of industries. Or more likely, as long as Republicans controlled the governor’s mansion and the state senate, maps that result in more Democratic representation at the state capitol could simply result in more gridlock and stasis.
Conclusion
At the end of the day, much remains to be seen as to how the election process will play out and what it portends for redistricting. But at a minimum, there is more possibility than would have been foreseen just a few years ago for the Democrats to have more influence in redistricting than they have had in a long time.
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1 This section summarizes the material set forth on the Texas Legislature’s website.
