Gerrymandering Texas

By Steve Bickerstaff

What if gerrymandering were not just a hot button contemporary political issue but actually a deep story of how Texas came to be?

Gerrymandering Texas uses relevant legislation and court cases to tell the political history of the state of Texas. Writing out of decades of experience as an assistant attorney general, senate parliamentarian, expert consultant on redistricting, and law professor, Steve Bickerstaff traces the story of this political practice from 1836 up to the present and prognosticates what lies ahead for the 2020 census and 2021 redistricting.

Since redistricting is the story of boundaries, borders, and representation, Bickerstaff’s book also tells the story of Texas’s evolution over time. The various Texas constitutions are unpacked, and the changing racial makeup of the state comes into sharp relief. Democrat dominance in state governance gives way to the recent Republican dominance. Bickerstaff’s analysis of redistricting, always clear-headed and even-handed, gives new insight into the history of the Lone Star State.

Gerrymandering Texas intersperses history and legal analysis with first-person stories of the author’s own many experiences with redistricting, from trying cases, to serving as expert witness, to consulting during the latest Texas constitutional convention. Many of these stories represent the first time Bickerstaff has made public his private opinions about important moments in recent Texas political history—moments in which Bickerstaff was himself a key supporting player.

• Language: English
• Publisher: Texas Tech University Press
• Release date: Nov 18, 2020
• ISBN: 9781682830741

Steve Bickerstaff

Steve Bickerstaff (1946–2019) was an attorney who initially was with the State of Texas as Parliamentarian of the State Senate, Director of the State Office of Constitutional Research, and Assistant Attorney General. During much of this time, Steve was also an adjunct professor at the University of Texas Law School teaching constitutional law and voting rights. Steve authored six books and at least twenty-four law review articles and chapters in law anthologies. Most of those writings are about election issues.

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Gerry

mand

ering

Texas

STEVE BICKERSTAFF

Gerry

mand

ering

Texas

EDITED BY C. ROBERT HEATH

TEXAS TECH UNIVERSITY PRESS

Copyright © 2020 by Texas Tech University

All rights reserved. No portion of this book may be reproduced in any form or by any means, including electronic storage and retrieval systems, except by explicit prior written permission of the publisher. Brief passages excerpted for review and critical purposes are excepted.

This book is typeset in Crimson Text. The paper used in this book meets the minimum requirements of ANSI/NISO Z39.48-1992 (R1997). ∞

Designed by Hannah Gaskamp

Cover image used with permission from The Texas General Land Office

Library of Congress Control Number: 2020942538

ISBN 978-1-68283-073-4 (paperback)

ISBN 978-1-68283-074-1 (ebook)

Printed in the United States of America

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Texas Tech University Press

Box 41037

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Contents

Illustrations and Maps

Foreword

Acknowledgments

Introduction

Chapter 1: Redistricting and Gerrymandering

Chapter 2: Is Gerrymandering Legal?

Chapter 3: The Long Reign of Texas Democrats (1836–1960)

Chapter 4: Reapportionment Revolution (1961–1970)

Chapter 5: Urban Changes (1971–1980)

Chapter 6: Political Sea Change in Texas (1981–2000)

Chapter 7: Republican Ascension (2001–2010)

Chapter 8: Republican Dominance (2011–2019)

Chapter 9: Strategies for Redistricting Texas in 2021

Chapter 10: Undoing Gerrymandering

Postscript

Appendix

Bibliography

Index

About the Author

About the Editor

Illustrations and Maps

1812 gerrymandering cartoon

US congressional districts, 2019–2020 elections

Texas congressional districts, 1846–1848 elections

Texas congressional districts, 1874–1878 elections

Texas congressional districts, 1958–1964 elections, with arrow to Dallas County

Texas congressional districts, 1958–1964 elections, with arrow to Midland and Ector Counties

Texas congressional districts, 1966 elections, with arrow to Midland and Ector Counties

Texas congressional districts, 1996 special elections and 1998–2000 general elections

Texas congressional districts, 2002 elections

Texas congressional districts, 2004 elections and 2006 primaries

All congressional maps courtesy of the Texas Legislative Council

Foreword

Steve Bickerstaff, the author of this book, was my friend. For eighteen years he was my law partner. Although the law practice (currently Bickerstaff Heath Delgado Acosta LLP) that the two of us founded in 1980 has grown and undergone various name changes both before and after his retirement in 1998, his surname has always been first among the names that identify the firm.

Not long after finishing revisions on this book, Steve unexpectedly died. While there remained some minor editing to complete, the product is wholly Steve’s. There was no one better able to write this story. To a large extent, Texas redistricting was Steve’s life. This is not to diminish the other important aspects of his life—his family, his career, his love of travel and the outdoors—or to suggest that it held a place superior to that of other personal and professional facets of his being. Rather, the story of Texas redistricting and Steve’s professional life overlapped substantially across a long and meaningful period. It is doubtful that there are many, if any, persons who had such a deep involvement in these issues over such an extended and critical period in the history of Texas redistricting. Thus, as readers go through the following chapters, they will have the benefit of the perspective of an author who was, in the words of the musical Hamilton, literally in the room where it happened.

From 1974 to 1976, Steve served as parliamentarian of the Texas Senate. While that span did not include a decennial redistricting session, it gave Steve the opportunity to gain a real insight into the legislative process and an understanding and appreciation of the members and leaders of the legislature—knowledge that would be invaluable in subsequent years as he advised legislators during the redistricting process and defended their actions in the courts.

Following his service as senate parliamentarian, Steve became an assistant attorney general under Attorney General John Hill. As a special assistant and later as the chief of the State and County Affairs Division of the Office of the Attorney General, Steve assumed responsibilities in defending the state in the ongoing lawsuits that lingered following the redistricting that reflected the results of the 1970 census. This included the landmark case of Graves v. Barnes (later White v. Regester) discussed in this book.

When John Hill’s tenure as attorney general ended in 1978, Steve moved to San Antonio to work with the legendary Herb Kelleher, one of the founders of Southwest Airlines, who at the time was general counsel of the airline company and a partner in his own law firm. Steve worked on the legal issues associated with Southwest’s transformation from an intrastate to an interstate airline. During that time, he also had a contract with the Texas Senate to prepare a legal and historical guide to redistricting for the use of the Texas Senate in the coming 1981 legislative session, when the legislature would redistrict following the publication of the 1980 census.

Steve decided to leave the San Antonio practice and invited me to join him in starting our own two-person law firm, Bickerstaff, Heath LLP; the contract with the senate was one of our first pieces of legal work. The analysis he produced pursuant to that contract was subsequently published in book form by the Texas Legislative Council, an abridged version of which can be found as Reapportionment by State Legislatures: A Guide for the 1980s, SMU Law Review 34:2 (1980). More important, it became a resource for both the House and senate as they undertook the task of drawing legislative districts that, due to the 1975 extension to Texas of Section 5 of the Voting Rights Act (VRA), would be required for the first time to be submitted to the Department of Justice for preclearance before those newly adopted districts could be used in an election. As discussed in more detail in chapter 6, the complexities in that process ran the gamut of issues that can come up in legislative redistricting.

While the guide Steve wrote for the Texas Senate largely set the template for the redistricting effort, lawmakers did not always follow his recommendations. In particular, the Texas House of Representatives decided not to follow his advice on avoiding cutting county boundaries in favor of conflicting, but more politically palatable, advice from some lawyer-legislators. As a result, the House districts were found to violate the state constitution. During that redistricting session, the two houses of the legislature were controlled by Democrats, but the governor, Bill Clements, was a Republican.

Because the way district lines are drawn can have a decided partisan effect, any instance in which a state is under divided political control makes it difficult to yield a final redistricting product. In this case, the Republican governor vetoed the redistricting plan adopted by the Democrat-controlled senate. Since the House plan had been invalidated by the Texas Supreme Court because of its failure to respect county boundaries and the senate plan had been vetoed, the task of drawing legislative districts passed to the Legislative Redistricting Board (LRB)—a body established by the state constitution to assume the redistricting task if the legislature failed to successfully adopt a plan.

The LRB consists of the lieutenant governor, the Speaker of the House, the attorney general, the comptroller of public accounts, and the commissioner of the General Land Office. Steve then had the opportunity to advise the LRB and later to defend the legislative and congressional plans when they were challenged in court. This included his work in Upham v. Seamon, a landmark case that defined the relationship between the courts and the legislature when it comes to adopting maps.

Steve was not directly involved in the legislative redistricting following the 1990 census, but in 2001 he advised Attorney General John Cornyn in his role as chair of the Legislative Redistricting Board. The year 2001 was a pivotal one in Texas redistricting history. Republicans, whose party by that time was dominant, could see a path to cementing their position through redistricting. In particular, the process provided the opportunity for them to achieve a majority in the House of Representatives, which, due to the district lines drawn by Democrats following the 1990 census, retained a Democratic majority.

The 2001 legislature, charged with drawing the new House, senate, and congressional districts, consisted of a senate with a Republican majority and a Democrat-majority House of Representatives. The governor, as well as all statewide elected officials—including the four statewide elected officials on the LRB—were Republican. Because the legislature was under divided control, with Democrats in charge of one chamber and Republicans in control of the other, any redistricting plans that could be adopted would likely reflect a compromise between the parties. If, however, as ultimately happened, the Republicans could prevent the legislature from passing any plan, the redistricting task would pass to the LRB, most of whose members were Republican. The LRB approved House and senate plans that increased the number of Republican seats and, for the first time, produced a Republican majority in the House of Representatives.

The LRB has no jurisdiction over congressional districts, so those districts were drawn by a federal court. The court was required, pursuant to Upham v. Seamon, to give deference to the latest expression of legislative will regarding congressional districts. This was the plan adopted following the 1990 census by a legislature in which Democrats were in control and that produced a districting plan that favored Democrats. As a result, the 2001 court-ordered plan that was generally based on that earlier plan produced a congressional delegation with a 17–15 Democratic majority.

When the 2003 legislature, which now had both a House and senate with Republican majorities, convened, it proceeded to replace the court-ordered plan with a new one drawn by the legislature. This was sometimes known as the re-redistricting. After the districts were redrawn, the court-ordered plan that had a 17–15 Democratic majority ended up as a legislatively drawn plan that, by the end of the decade, produced a 23–9 Republican majority. This was the legislative session in which Republican voting strength was converted to control all elements of statewide political power in Texas. The House of Representatives, the senate, and the congressional delegation all had Republican majorities.

All statewide elected officials were Republicans. The state in which in the 1960s a single elected Republican was a rarity was now clearly a Republican stronghold. Although Steve did not participate in the 2003 congressional redistricting, he was thoroughly familiar with it and wrote a book—Lines in the Sand: Congressional Redistricting in Texas and the Downfall of Tom Delay (University of Texas Press, 2007)—about it. This was the redistricting session in which House Democrats fled to Ardmore, Oklahoma, and subsequently senate Democrats traveled to Albuquerque, New Mexico, in what proved to be unsuccessful attempts to prevent the congressional redistricting bill’s passage.

While these last few paragraphs have discussed Steve’s ties to redistricting at the state level, which is the subject of this book, he also was intimately involved in representing cities, counties, and school districts when they redrew their single-member districts. Essentially, the same legal principles apply whether the redistricting is of state or local government. In each decade of his professional tenure, Steve and the law firm represented numerous political subdivisions as they drew districts following the census or otherwise faced legal questions in a redistricting context. In recent years, the firm has represented roughly a hundred local jurisdictions during a redistricting cycle. Steve and the firm would also represent local governments in redistricting-related litigation.

In 1998, Steve retired from the law firm to pursue business opportunities and to teach at the University of Texas School of Law, where his classes and seminars addressed election law and redistricting. Although he retired as a partner in the law firm, he continued to do occasional legal work, including work on the 2001 redistricting. During that period of his career, he was a Fulbright Scholar teaching in Germany and a Rockefeller Foundation Scholar in Italy. In addition to this posthumously published book, he authored Election Systems and Gerrymandering Worldwide, which was published in Europe shortly after his death.

Steve was an excellent lawyer. He was always thoroughly prepared and, like a chess master who can visualize the board many moves ahead, he brought insight and prescience to his analysis of legal issues. It is likely that there is no one who had as intimate, as long, and as knowledgeable a relationship with Texas redistricting as Steve Bickerstaff. For the reader who wants to learn about this important aspect of the state’s legal and political history, this book is the place to start.

C. Robert Heath, December 2019

Acknowledgments

Bob Heath reviewed and helped edit this book. His assistance was invaluable. Bob is recognized nationwide as one of the ablest and most experienced redistricting attorneys. He has previously served as assistant to a Texas state senator, as clerk for US District Judge Jack Roberts, and as Chief of the Opinions Division of the Office of the Texas Attorney General. Bob co-founded the private law firm of Bickerstaff, Heath LLP in 1980. Over the past thirty-nine years, he has represented dozens of public jurisdictions and officials in election and open-government matters and is the author of several consequential articles on these legal issues. He is now a senior partner at Bickerstaff Heath Delgado Acosta LLP.

I also wish to acknowledge Charlotte Carter, whose patience and copyediting skills made this book possible.

Steve Bickerstaff, August 2019

Introduction

Jim Dunnam was in the parking lot of the Embassy Suites in Austin on Sunday afternoon, May 11, 2003. He was alone in his thoughts as he anxiously awaited his colleagues, the Democrats of the Texas House of Representatives. As chairman of the House Democratic Caucus, he knew that he was on the verge of either a historic walkout that would defeat the Republicans’ congressional redistricting legislation or a shameful fiasco. The planned walkout was the Democrats’ last and least-favored option.

To break a quorum in the Texas House of Representatives so that it cannot pass legislation requires the absence of fifty-one members, one more than one third of the 150 members. The margin for error was narrow. There were sixty-two Democrats in the House, but the price to be paid for participating in the walkout would be steep. The Republican Speaker of the House, Tom Craddick, was certain to exact revenge. As a result, getting over fifty-one Democrats to secretly sign a pledge to leave had been difficult.

As he waited in the parking lot, Dunnam went over the numbers in his head. He knew that Democratic Representative Ron Wilson had come out openly for the Republican legislation and that for various reasons eight Democrats would remain in Austin where they were likely, willingly or unwillingly, to become part of the House quorum. Six other Democrats pledged to join the boycott by traveling out of state on their own. If all kept their promises, the House would be without a quorum. If not . . . ?

The Democrats came to the parking lot slowly. They arrived alone or in small groups. Dunnam was anxious. Some Democrats were driving around and watching or receiving cell phone reports on the number of arrivals. They wanted to make sure the walkout would be successful before they joined it. Those already in the buses called their absent colleagues to encourage them to come. Dunnam waited and worried.

Meanwhile, the Speaker, Republican Tom Craddick, was in his apartment at the back of the House chamber, totally unaware of the Democrats’ plans. He was furious when he learned that the Democrats were gone. Their absence jeopardized the Republican plan to gain control of the Texas congressional delegation for the first time since shortly after the Civil War. Craddick immediately called the other state officials (all Republicans), Congressman Tom DeLay, and the Department of Public Safety (DPS). The message was similar in each call: Find the Democrats and bring them to the House chamber. To the public he said, The Chicken Ds that did this ought to be ashamed of themselves. There is disgrace in running and hiding. . . . I’ve been in the House for thirty-five years and I’ve lost some, but I’ve never walked off the floor like these Chicken Ds.

The Democrats’ walkout captured the nation’s, and to some extent the world’s, attention for months in 2003. The question is: Why such drastic tactics for this particular moment?

The tactic of House Democrats—and subsequently senate Democrats—to flee the state en masse to deny a quorum and prevent action on a congressional redistricting bill was extreme. Extreme action, however, was not entirely unexpected in 2003. That year marked a tectonic shift in the balance of partisan power in Texas. Historically, Texas, like other states in the south, had been a Democratic state. When the modern era of redistricting pursuant to the one-person, one-vote principle began in 1965, only one Republican served in the 150-member Texas House of Representatives. There were no Republicans among the thirty-one state senators. Over the years, however, the Texas Republican Party gained strength with each succeeding election. Democrats had seen their majority in the state senate evaporate by the end of the 1990s and their majority in the House of Representatives dismantled by the 2001 LRB redistricting. By 2003, there was a Republican governor and Republican majorities in both the Texas House of Representatives and the state senate.

Two years earlier, a federal court had drawn congressional districts for the state because the legislature could not agree on a districting plan. In 2001, Democrats still had a majority in the House of Representatives, and Republicans had a majority in the state senate. If the move to replace the court-drawn congressional redistricting plan with one drawn by the new legislature (where Republicans were now in complete control) came to a vote, Democrats would not be able to prevent the codification of a very unfavorable map for them. For Democrats, 2003 marked desperate times calling for desperate measures.

The legislature considers many important issues, yet redistricting—the redrawing of district lines generally following the once-a-decade census to bring districts into population balance—is one of very few that invariably seizes the interest of legislators and the public and that can result in extraordinary measures such as a third of the legislative body fleeing the state for an extended period to prevent action on that or any other legislation. Why is that?

Redistricting has an impact on at least three distinct groups. First, it affects the individual legislators, since it determines the composition of the districts in which they must seek reelection. Second, it affects political parties and may determine whether a particular party will be able to control a majority of legislative seats and thereby shape public policy in the state for the coming decade. Finally, it affects racial and ethnic groups and may determine if candidates from those groups will have an opportunity to be elected. In essence, redistricting can, and often does, determine who will be elected in a given district.

The annals of redistricting are replete with situations where districts are designed to ensure a legislator’s reelection or promotion to a higher office such as a congressional seat. In 1971, the 18th Congressional District was drawn with the expectation that State Senator Barbara Jordan would run in it and win, which she did. In other instances, districts are drawn to separate an incumbent from his base of support. Chapter 4 explains how a Democratic legislature drew West Texas districts to prevent Republican Congressman Ed Foreman from being reelected, and chapter 7 discusses how a Republican legislature drew districts in Dallas and East Texas to successfully prevent the reelection of Democratic incumbents Martin Frost and Jim Turner. Any politician’s continued electoral viability is of the utmost importance to that individual. It follows then that a senator or representative may often consider redistricting legislation to be the single most important item on the legislative agenda.

In addition to the impact redistricting has on individual members of the legislature and of Congress, it can also determine which political party will be successful and which may be relegated to minority status for the next decade. A skillfully drawn redistricting plan can ensure that a political party retains a majority of a state’s legislative or congressional seats even though it does not receive a majority of the votes. For example, in Pennsylvania, in the three elections of the 2012 to 2016 cycle, Democrats received, on average, 51 percent of the vote to the Republicans’ 49 percent. Yet, due to the 2011 redistricting plan drawn by the Republican-controlled General Assembly, Republicans consistently elected their candidates to thirteen congressional seats while the Democrats were successful in only five. The Pennsylvania Republicans drew districts that benefited their candidates; in Texas, much the same result was evident, but for another party in a previous era. Because of the manner in which districts were drawn in the early 1990s, when the Democrats were in control, Democrats were able to maintain