One of the central allegations in the case, made by the Mexican American Legislative Caucus (MALC), is that state lawmakers violated a provision in the Texas Constitution known as the “county line rule” when they passed the maps being used in the current election cycle.
Seeking an “Advisory Opinion”
In light of the court’s opinion earlier this year in a redistricting case involving the Harris County Commissioners Court, parties involved in the lawsuit against the legislative map signaled that they do not expect the court to issue any injunctions prohibiting the maps’ usage in the upcoming general election.
Attorneys for MALC and a group of lawmakers who are another party to the case said that they would be happy to see injunctive relief, but regardless of that possibility, they seek declaratory judgment against the new maps that are now law.
But the state argues that opponents are simply seeking an “advisory opinion” from the court that would be “non-binding.”
In filings throughout the case, attorneys for the Office of the Attorney General (OAG) — who are representing the governor and the secretary of state in their official capacity — have acknowledged that lawmakers are constitutionally obligated to take up redistricting again in the next regular session.
The OAG contends that it should be presumed that the legislature will carry out its duty, or alternatively, that the Legislative Redistricting Board (LRB) will if the legislature does not act.
A declaratory judgment now, in the OAG’s view, would only serve the purpose of guiding lawmakers — a “precatory, non-binding pronouncement” that “would be precisely the type of advisory opinion that Texas courts lack jurisdiction to issue.”
MALC argues, though, that the “Defendants’ argument that the map might change during the 2023 Legislative session is pure speculation.”
Attorneys for the caucus contend that since the state House map being used for the current election cycle “is the only map legally in force” and “has no expiration date,” that they have “a legal right to pursue a declaratory action against the only maps that are legally in force.”
Jurisdiction
In a brief, the OAG asserts that “even if the Court were inclined to overlook” their argument that it has no authority to issue an “advisory opinion,” the case should come to a halt now due to a lack of the plaintiffs’ standing.
So far, though, judges have not bought the OAG’s argument on standing.
The trial court — unique in this circumstance in that it consists of a panel of two trial court judges and an appellate court judge — already denied the state’s pleas to jurisdiction, which is the decision that was appealed to the Supreme Court.
At the high court hearing on Wednesday, justices also seemed hesitant to accept the jurisdictional argument.
“Who does have standing to bring these complaints?” asked Justice Jeff Boyd.
Lanora Pettit, the attorney presenting oral arguments for the OAG, argued that for cases regarding Article 3, Section 28 — dealing with one set of plaintiffs’ contention that redistricting should have been delayed entirely to 2023, not MALC’s primary complaint on the county-line rule — because of the “unique factual circumstances here, it’s unclear that anybody would have standing.”
“That just seems really hard to swallow, honestly,” said Boyd. “Challenging new maps on these grounds raises a very important constitutional issue.”
Pettit went on to say that the section regarding the county-line rule, “here the question is much more of a pleading question as opposed to a legal impossibility question.”
She argued that the two plaintiffs making complaints on that section of the Texas Constitution, a Democratic candidate for House District (HD) 37 and MALC derivatively through HD 37 incumbent Rep. Alex Dominguez (D-Brownsville), do not demonstrate sufficient injury.
“If a voter and a representative don’t have standing to challenge under Section 26, who does?” asked Justice Evan Young.
Pettit said that if Dominguez had run for reelection in HD 37, the OAG does “not dispute he would have had standing.”
But Dominguez was drawn out of the district and decided to seek election to the Texas Senate instead. And, as the OAG pointed out, the only other member of MALC in Cameron County, Rep. Eddie Lucio, III (D-Brownsville), also declined to seek reelection.
County-Line Complaint
Whether or not the Supreme Court decides to allow the case to proceed, the debate over the formation of the districts in Cameron County will loom over the question of redistricting moving forward into the next legislative session.
For the drawing of state House maps, the Texas Constitution requires that “whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District.”
MALC contends that this county-line rule means that Cameron County is entitled to two House districts that are contained within its boundaries.
Similar to the makeup used in the past decade, a third district could still be partially within Cameron County and branch into a neighboring county, either Willacy or Hidalgo.
But the map drawn by lawmakers only contains one district, HD 38, wholly within Cameron County, while two others, HD 35 and HD 37, are partially within Cameron County but branch into Hidalgo and Willacy counties, respectively.
Though the oral arguments from the OAG focused more on the issue of jurisdiction, the state contended in a filing that MALC’s interpretation of the county-line rule is incorrect.
They agree that at least one district must be wholly contained within a county, but argue that “nothing requires that the Legislature maximize the number of seats wholly contained in the county.”
Asked by Justice Jimmy Blacklock what would prohibit lawmakers from drawing only one House district in Harris County and drawing the remaining population into districts that stretch into various other counties, Pettit said that would not be allowed for “practical and precedential” reasons.
She said the important factor is that the state makes a “good faith effort” to follow the county-line rule.
“There are no allegations here that the state did not attempt to comply with the county-line rule in good faith,” said Pettit.
Pettit also defended the formation of the districts in the Rio Grande Valley by noting that five members of MALC voted in favor of a Lucio-backed amendment that included a similar division of the single whole district and two partial districts in Cameron County.
When the amendment referenced in the state’s filing was brought to the committee where it was voted, Rep. Rafael Anchia (D-Dallas), the chairman of MALC, was careful to point out that the apparent county-line violation was carried over from the base map that the committee was voting on and that the amendment was addressing other redistricting concerns in the Rio Grande Valley.
If the courts issue a declaratory judgment in favor of MALC that says the boundaries of the map are unconstitutional, the opinion could push lawmakers or the LRB in the upcoming year to redraw the boundaries in a compliant way.
But if the courts rule favorably to the state on either matters of jurisdiction or on the merits of the county-line debate itself, lawmakers may be more inclined to adopt the same or a similar map in the next legislative session.
Regardless, the district boundaries in the political battleground will continue to face pushback in courts and the legislature in the year to come.
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Daniel Friend
Daniel Friend is the Marketing and Media Manager for The Texan. After graduating with a double-major in Political Science and Humanities, he wrote for The Texan as a reporter through June 2022. In his spare time, you're likely to find him working on The Testimony of Calvin Lewis, an Abolition of Man-inspired novel and theatrical podcast.
