Even before the new maps were drawn, state Sens. Roland Gutierrez (D-San Antonio) and Sarah Eckhardt (D-Austin) filed a lawsuit attempting to force lawmakers to wait until 2023 for the redistricting process.
Their argument was rooted in the textual requirement of the state constitution that lawmakers must redistrict during “its first regular session after the publication of each United States decennial census.”
Typically, the decennial census is published while the legislature is meeting in a regular session during the first odd year of each decade, and it is accepted that lawmakers must redraw during that session to comply with the constitution.
Federal law even requires the Census Bureau to publish by that time, but the agency dropped the ball. Citing delays due to the COVID-19 pandemic, the data was not released until August, well after the end of the regular session.
As a result, the first “regular session” after the publication of the census will not occur until lawmakers meet in January 2023.
The Democratic senators’ lawsuit lingered as courts opted not to cause confusion so soon before the next election period. But a case that involves their arguments consolidated with other redistricting concerns still pends before the Texas Supreme Court and is slated for a hearing next week.
In a reply brief filed on Thursday, state defendants stated that they “do not dispute that the Legislature is obliged to redistrict during the ‘first regular session’ after the census — here the 2023 regular session.”
However, they also defend lawmakers’ approval of maps to be used in the ongoing election cycle, saying, “[N]othing about a requirement to redistrict in a ‘regular session’ precludes reapportionment at another time — particularly when required by federal law.”
At this point, courts are highly unlikely to require any changes to the maps for the current election.
Even in January, the legal opponents of the map stated in a court filing, “[N]o one asks this Court to disturb the current election cycle at this point in the litigation.”
Instead, their aim of the ongoing court proceedings is “to allow sufficient time for the parties to litigate the merits before the 2023 legislative session.”
The state dismisses such pursuit of an “advisory opinion,” contending that “it is well established that Texas courts lack jurisdiction to issue such precatory, non-binding decisions.”
In contrast, the Mexican American Legislative Caucus (MALC), one of the parties against the state in the suit, contends that it misconstrues their argument to frame it as seeking an “advisory opinion.”
“Although MALC has abandoned its request for temporary injunctive relief ahead of the 2022 primary election [. . .] this does nothing to change the live declaratory judgment action at the heart of MALC’s Petition,” the group stated.
“Rather than being simply advisory, a ruling by the court as to the constitutionality of the Texas House of Representatives electoral map is unconstitutional would be a determination of legal statuses, rights, and relations.”
How any court decisions could affect further redistricting will remain to be seen, but as noted by both sides, “All parties agree that the Legislature has a duty [. . .] to apportion the Texas House and Senate in the first regular session after the decennial census is published, which is the 2023 Regular Session.”
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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.
