Emails (excerpted), responses to PolitiFact Texas, Steve Bickerstaff, lawyer, Austin, Feb. 28, 2012

10:23 am

Since 1975, the Texas Legislature or Legislative Redistricting Board has adopted 13 statewide redistricting plans (not including State Board of Education plans). Ten of those received an objection under Section 5 of the Voting Rights Act.  Another was invalidated by the Supreme Court as a racial gerrymander.  Another was invalidated by the Supreme Court under Section 2 of the VRA.  Only one plan escaped objection under Section 5 and was used for the decade.  The breakdown is as follows:



         One plan adopted (Texas House of Representatives); One objection.



         Three plans adopted; Three objections (Actually the initial Texas House plan was invalidated by the Texas Supreme Court, but the replacement adopted by the LRB received an objection).



         Three plans adopted; Two objections

         The congressional plan escaped objection, but in 1996 was declared unconstitutional as a racial gerrymander (Bush v. Vera).  As I recall, the plan drawn by the federal court for the Texas House was then adopted by the House in special session in 1992 (I did not count this plan among the 13 adopted by the state).  An agreed order then redrew the Texas House and Senate plans in 1996 after Bush v. Vera.



         Two plans adopted; One objection (The Texas Senate plan drawn by the LRB escaped objection and was used for the decade)

          The Texas Legislature failed to adopt a congressional plan.  A plan was drawn by a federal court.



         One plan: No objection

         This plan was the DeLay-lead redrawing of the congressional districts.  Parts of the plan were struck down under Section 2 of the VRA.  (LULAC v. Perry)



         Three plans adopted; Three objections (The plan for the Texas Senate won approval by DOJ, but was struck down by the DC Court)


12:35 pm

A clarification about 1991.  It appears that the State House and Senate plans were submitted to DOJ, but, when it appeared that DOJ would object, the plans passed by the Legislature were withdrawn from DOJ (i.e. never received preclearance) and new plans were submitted after a state court approved a settlement drawing the new plans.  However, the Texas Supreme Court voided the state district court's order.  Thus, Texas was left without any plan.  The federal court then adopted its own plans for the Texas House and Senate.  Governor Richards called a special session for January, 1992.  At the special session, the Texas House agreed to the federal court plan.  The Senate would not go along with the federal court plan and, instead, adopted the plan that had been accepted by the state court as an agreed order (before being voided by the Texas Supreme Court).  The federal court refused to adopt the legislature's new Senate plan because it had not been precleared.  The federal court ordered its own plan for the primary.  The state went to the DC Court to get its new Senate plan precleared.  The DC Court's ruling did not come down until the late summer.  It precleared the legislature's new Senate plan, but the court in Austin said it was too late to use the plan for the 1992 elections, so the court's plan was used in 1992.


The brunt of this history is that it may be said that the Texas House and Senate plans passed by the legislature in 1991 never technically  received an objection under Section 5 since they were withdrawn before DOJ could rule.  Nevertheless, they never received preclearance and were therefore never in effect.  Efforts to replace them with agreed plans from state court were unsuccessful.  They were replaced with new plans (federal court plans) for the 1992 elections.

From: Selby, Gardner

Sent: Thursday, February 28, 2013 1:51 PM

To: Steve Bickerstaff

Subject: RE: Texas reporter, fact check inquiry, deadline today




A little of what you say below appears to conflict with the Texas Legislative Council's timeline for that decade, which indicates that on Nov. 12, 1991, the Justice Department denied preclearance to the original legislated plan for Texas House districts. Do I read that right? The so-called settlement plan, passed into law in 1992, won preclearance on July 20, 1992. A panel of Austin judges upheld the same plan to be used in the 1994 elections and beyond (presumably). Correct?


Timeline link:

2:57 pm

Yes.  The Senate plan was withdrawn from DOJ in 1991, but apparently the House plan was not withdrawn. It received an objection.   In both instances, however, an unsuccessful attempt was made to get a state court-ordered plan (by agreement with the Hispanic plaintiffs) to replace the plan passed by the legislature.


The 1992 Senate plan was used only in 1994, but not thereafter.  The same persons who had successfully challenged the congressional plan as an unconstitutional racial gerrymander (Bush v. Vera; Vera v. Richards at district court) made similar claims about the Texas House and Senate plans. In 1995, these same plaintiffs pursued their cases against the Texas House and Senate plans.   A settlement was reached that redrew certain Texas House and Senate districts to avoid the racial gerrymander claim.  These plans were entered by a federal court.


In other words, the Texas House and Senate plans enacted in 1992 were replaced in 1996 by court approved plans.  In my count of statewide redistricting plans, I purposefully did not count the 1992 plans because in each instance the initial plans enacted by the Legislature did not receive preclearance.  The 1992 Texas House plan was essentially an enactment of the federal court plan (I am not even sure it was different at all;  that is why it apparently was never submitted for preclearance [a federal court plan does not require preclearance) .  The 1992 Senate Plan was not used in 1992; it was only used in 1994.