Phase Two of the redistricting lawsuit trial begins today, in which the 2011 Congressional maps go under the microscope. That’s as good a time as any for the mandatory How Much All This Redistricting Litigation Is Costing Us story.
Texans are on the hook for $3.9 million in costs for Attorney General Greg Abbott to fight for Republican-championed redistricting maps, and that number will only grow as a years-long legal fight continues Monday in federal court in San Antonio.
A big tally is expected in complicated redistricting litigation, experts say, particularly with the Abbott legal team’s aggressive defense of the congressional and legislative maps approved by the GOP-majority Legislature.
“Abbott’s attitude has been very much ‘I’m going to litigate this to the ends of the earth,’” said Michael Li, redistricting counsel at the Brennan Center at New York University School of Law.
Abbott’s staff said he simply is doing his job as the state’s top lawyer and that the responsibility for the costs lies with those who have challenged the maps. Democrats said Abbott is using taxpayer funds as an ATM to defend discriminatory maps.
The $3.9-million tab so far, provided to the San Antonio Express-News in response to a Public Information Act request, includes more than $2.2 million in costs for in-house salary and overhead at the state attorney general’s office.
Abbott spokeswoman Lauren Bean said internal costs include employee salaries that would have been incurred regardless of the cases. The state lawyers have spent 26,986 hours on redistricting litigation.
The total also includes $887,327 for high-powered outside counsel, $447,567 for expert witnesses and $339,996 for travel and other expenses.
“This litigation is fairly complex. It has a number of issues with voting rights concerns, and it has been drawn out over a long period of time. Those two things together, I think, are really what are driving the cost here of this effort,” said Michael McDonald, a redistricting expert who is associate professor of political science at the University of Florida in Gainesville.
In what Li called an example of the state’s aggressive court strategy, Abbott in 2011 filed a federal lawsuit to get a federal stamp of approval of the state’s maps from a court, rather than going through the administrative process at the U.S. Department of Justice.
He did not get that federal “pre-clearance,” required of states with a history of discrimination. But the formula used to determine whether a state is required to obtain pre-clearance to make voting changes was struck down by the U.S. Supreme Court in a separate case.
Li said Abbott’s aggressive strategy has worked in the state’s favor on occasion, pointing out that the U.S. Supreme Court sided with Texas in rejecting an initial set of interim maps drawn by a three-judge panel in San Antonio back in 2012.
“They’ve had some victories, though mostly they’ve come out with losses,” he said.
That’s pretty much it in a nutshell. It is Abbott’s job to defend the state’s maps, and much of the cost comes from salaries his own lawyers would be earning anyway, but Michael Li is absolutely right. Abbott is all about maximal ideological (and partisan) gain, without any other consideration. It’s not like the redistricting defense is out of character for his office, after all.
Like the fight over redistricting itself, the squabble about how much it costs to defend redistricting maps tends to sort itself out along partisan lines, so let’s move on. As Phase One, which concluded a couple of weeks ago amid little scrutiny, was about the State House, Phase Two is about the 2011 Congressional maps. The Texas Election Law Blog has a summary of what to watch for.
III. For Those of You Keeping Score
If Congressional districts were apportioned based solely on race, about 13 of the old 32 seats would have been apportioned to minority-favored candidates, and 14 seats would have to be apportioned out of the new 36 seats. As it happened, only 10 of the old seats were so apportioned (3 to African-American-favored candidates, and 7 to Hispanic and Latino-favored candidates).
That’s discriminatory, but not addressable as retrogressive (10 seats was better than what voters had been given previously). A redistricting plan isn’t retrogressive if it preserves an existing level of racial discrimination. If the state’s population hadn’t increased, Texas would not violate Section 2 of the Voting Rights Act by continuing to provide the same 10 total minority districts.
But as the number of seats increased from 32 to 36, Texas at least wasn’t legally entitled to make minority voters even worse off. They would have at least not been the author of worse discrimination than before by increasing the number of minority districts from 10 (which was three seats less than what it should have been) to 11 (which would have been three seats less than the new ideal of 14 seats out of 36).
So to recap – when Texas had 32 Congressional seats, 10 of the seats were apportioned as minority districts (3 African-American districts and 7 Hispanic or Latino districts). With 36 seats, either 10 (or 9 – there’s some disagreement among the parties about CD25 being a minority district or not) seats are now minority districts, meaning that depending on how one counts the districts, minority voters are either worse off (i.e., more discriminated against than before) by one Congressional district, or two.
IV. Remember the Real Issue
The State of Texas could admit that the 2011 redistricting plan was retrogressive, and still avoid any sanction. That’s because the 2011 plan was never actually used for an election, it was replaced with a court-drawn plan that was substantially adopted by the Texas Legislature in 2013, and that will be used for the 2014 election.
The real issue is whether the State of Texas engaged in intentional racial discrimination when it enacted the 2011 redistricting plan.
To keep track of the (surprisingly spotty and inconsistent) media coverage of the trial, and to make sense of the outcome, remember that the question isn’t so much that the 2011 redistricting plan was “bad,” but that the plaintiffs allege that the people drawing the maps made the plan intentionally bad in order to discriminate against minority voters.
I will be keeping track of the coverage, such as it is. There are still the 2013 maps to litigate, and of course whatever happens this will get appealed, so don’t be too anxious for a ruling anytime soon. If you need further incentive to get out and vote this fall, do keep in mind that Attorney General Sam Houston would be considerably more likely to find a reasonable settlement for the litigation than AG Ken Paxton would be.
Harold Cook has more on the Phase One part of the trial.