Let's Mess with Texas
Kesavan, Vasan, Paulsen, Michael Stokes, Texas Law Review
"New States, of convenient size, not exceeding four in number, in addition to said State of Texas, and having sufficient population, may hereafter, by the consent of said State, be formed out of the territory thereof, which shall be entitled to admission under the provisions of the federal constitution."
-Joint Resolution for Annexing Texas to the United States1
Texas Republicans have been thinking waaaaay too small. In 2003, for the first time since Reconstruction, Texas Republicans controlled both houses of the state legislature. Encouraged by House Majority Leader Tom DeLay (R-Texas) and perhaps Presidential adviser Karl Rove as well, Texas Republicans decided in the spring of 2003 to take up a new congressional redistricting plan that they hoped would "better reflect" the state's increasingly Republican voting patterns.2 The then-existing congressional map had been drawn up by a three-judge federal panel in 2001, after the state legislature could not agree to a new one.3
In a famous and comic Texas-sized drama (or fiasco, depending on one's point of view or one's politics) stretching throughout the four seasons of 2003,4 the state's Republican Governor, Rick Perry, along with the Republican majorities in both houses of the state legislature, finally succeeded in outlasting more than 50 State House Democrats and 11 State Senate Democrats who had fled, respectively, to Ardmore, Oklahoma in the spring5 and Albuquerque, New Mexico in the summer,6 to deprive their respective houses of the necessary quorum to adopt the Texas Republicans' proposed redistricting plan.7 (One could call this process-and in fact some already have called it-"perrymandering."8) Alas, no one can stay in a Holiday Inn forever, and the State Senate minority leader, John Whitmire of Houston ("Quitmire" as he is now disaffectionately known), turned tail after almost 30 days holed up in a hotel in Albuquerque and loped on home to the Lone Star State in the late summer,9 bringing an end to the "Great Texas Redistricting Standoff" of 2003.
Well, the third special session was the charm. In mid-September, the Texas Republicans, quorum in hand, proceeded to de-gerrymander, ungerrymander, or re-gerrymander (again, depending on one's point of view or one's politics) the state's congressional and other legislative districts, in all probability tilting the state's districts less in the Democrat direction and more in the Republican one. By mid-October, and after mediation by Representative DeLay, the Republican-controlled state legislature sent a "compromise" redistricting plan to Governor Perry for his signature, which was promptly received.10 The Texas Democrats, not to be outdone, took the Texas Republicans' redistricting plan to federal court claiming that it was unconstitutional.11 After the trial had begun, but before any opinion was issued, U.S. Attorney General John Aschroft granted "pre-clearance" to the redistricting plan pursuant to Section 5 of the Voting Rights Act of 1965.12 On January 6, 2004, a three-judge federal panel approved the redistricting plan.13 The Texas Republicans' victory was sealed on January 16, 2004 when the U.S. Supreme Court refused to block it.14
According to some accounts, Texas's 32-member congressional delegation, which after the 2002 elections was split 15-17 Republican-Democrat, could shift to a 22-10 or 23-9 Republican majority as a result of the 2003 redistricting plan for a net gain of 7-8 Republican seats.15 This might even give Republicans control of the House of Representatives for the rest of the decade, and would in all likelihood significantly enhance House Majority Leader Tom DeLay's prospects for becoming the next Speaker of the House.16 Without a doubt, the Texas redistricting plan pushed through by the GOP in 2003 could set off a wave of gerrymandering across the country to "counterbalance" the Texas effect-for example, New Mexico's Democrat governor, Bill Richardson, who proudly harbored the State Senate Democrats on the lam,17 recently considered (seriously) but has rejected (for now at least) a redistricting plan in New Mexico that would have increased the Democrats' chances in that state. …