When the Census results are released next spring, Texas is expected to gain as many as three new congressional seats. Redrawing the district maps for the U.S. House of Representatives – as well as for the State Legislature and the State Board of Education – will be one of the major tasks Texas lawmakers face in the next session.
But how does that work?
To draw useful maps, legislators need to know who lives where — information that's just being analyzed now by the U.S. Census Bureau.
"The deadline, the statutory deadline for release of the census is March 31," said Jeff Archer, executive director of the Texas Legislative Council, a non-partisan research agency that assists lawmakers in redistricting. "For redistricting, you need two things: you need the census, and you need the system to use the census, to draw the districts.”
The system Texas lawmakers use is unique software known as Red Apple, short for “redistricting application.” Texas is one of the few states that still uses its own custom software.
"The bigger the state, the more likely they are to use their own – California or Texas or New York – than a smaller state that's more likely to use off-the-shelf software that has a lot less data, a lot fewer issues," Archer said.
Texas has used some version of Red Apple since the 1990s. Archer said the only major changes in the program since then is that it has become faster and smoother in its operations.
The U.S. Census Bureau website currently is projecting the release of census data will be around April 1, at least a day late. But once the data becomes available, any state lawmaker can input that data into Red Apple and start to draw maps.
"If you want a district that has 100,000 people in it," Archer said, "you basically open the system to the part of the state that you want your district in, and you start selecting units of geography, basically combining them together into a blob, if you will, into a district. It will automatically accumulate all the data for all the blocks, the census data."
And with that, you can draw maps that, say, make it more or less likely that Republicans or Democrats — or any particular demographic group you can think of — can elect a representative that reflects their interests.
Archer said it's not just lawmakers who make use of the software.
"The Legislature traditionally makes it available through the members. So, a citizen can contact their member if they want to work on districts. But our system is designed to work only in the Capitol complex. There's a lot of security involved and so on," he said. "Lots of members sponsor groups or work with, you know, MALDEF or the Republican Party in their offices or in their district offices."
Because Republicans control a majority in both chambers of the State Legislature, as they have for nearly two decades, the final maps are likely to favor Republicans. That's the hope of Adam Kincaid, executive director of the National Republican Redistricting Trust, a group that coordinates redistricting efforts in all 50 states.
"Our hopes when it comes to Texas redistricting is simply that we'll have maps that respect communities of interest, that keep cities' and counties' populations together, that we'll be able to send back a healthy delegation to the United States House in 2023 after these lines are drawn and we hold elections on them in 2022, and that Texas will be a big part of helping Republicans take back the U.S. House in 2022," Kincaid said.
However state lawmakers tackle the issue, they'll have at most two months to draw and pass informed maps — starting when the Census Bureau releases its data and ending with the regular legislative session on May 31.
"There're two different parts of the redistricting process," said Ed Emmett, former Harris County judge and a former Republican state lawmaker, now a fellow at Rice University's Baker Institute. "There's legislative redistricting, where you draw the Texas House and Texas Senate boundaries. And traditionally, the Texas House has passed a bill for House districts, the Senate has passed a bill for Senate districts, and they just accepted each other's bills. My guess is that will probably happen again."
The second part is redistricting for U.S. Congress and the State Board of Education, on which both houses of the Texas Legislature must agree.
"Congressional redistricting, which is what so many people care about," Emmett said, "inevitably is challenged in court by one side or the other. And in years past, federal judges have made tweaks to it, but not necessarily thrown out the whole plan."
If state lawmakers can't reach a compromise, or if the governor vetoes their maps, the decision goes to a body known as the Legislative Redistricting Board — an entity made up of the lieutenant governor, the speaker of the House, the attorney general, the state comptroller, and the state land commissioner. All Republicans.
"So, it's not in the Democrats' interest, really, to cause any great difficulty at the legislative level, because it could just get worse at the Legislative Redistricting Board," Emmett said.
When one party controls the process of redistricting as much as Republicans have in Texas in recent decades, it increases the likelihood of partisan gerrymandering. That's when districts are drawn with the express aim of maximizing one party's chances of capturing or retaining the district. The result can be districts of unusual shapes and sizes, curling in multiple directions. Prime examples include Texas’ 2nd Congressional District held by Republican Rep. Dan Crenshaw, and Texas’ 22nd Congressional District, just won by Republican Troy Nehls.
The practice of partisan gerrymandering was recently upheld by the Supreme Court.
"The only real constraint is that when you're engaged in this partisan gerrymandering, that you don't violate the Voting Rights Act and undercut the ability of ethnic and racial minorities to select and elect candidates of their choice,” said Mark Jones, professor of political science at Rice University.
In the past, blatant efforts by one side or the other to draw the maps to their own advantage have typically landed Texas in court – often on charges of violating the Voting Rights Act. But something is different this time that could tilt such lawsuits in the state's favor. In 2012, a Supreme Court ruling gutted a section of the Voting Rights Act that required Texas to get preclearance from the federal government before making major changes to its voting laws to make sure those laws do not harm minority voters.
"It could mean that in places Republicans could choose to dismantle districts where Black or Latino communities are able to elect their preferred candidates," said Michael Li, senior redistricting counsel with the Brennan Center for Justice at the NYU School of Law.
But Li said such an approach could backfire on Republicans, "because basically dismantling a Black or Latino district means dumping a bunch of Black and Latino voters into white districts, which would have the effect of making them more competitive, and that may be something Republicans don't want to do."
Li said it's more likely that the bigger impact of the absence of preclearance is that Texas will be able to begin using its new maps right away, without having to get the approval of the U.S. attorney general or the U.S. District Court for Washington, D.C.
But even with the preclearance section gone, Texas could still find itself in court if, for example, the maps appear to dilute the state's large Latino voting pool in order to advantage Republicans.
"[Texas] was the fastest growing state in the country last decade," Li said. "It's projected to have gained about 4.3 million people. Of that, about 55 percent are Latino, and about 90 percent are nonwhite. So, there's going to be a lot of demand for increased representation both at the state legislative level and the congressional level for these fast-growing communities of color, but that may be something that Texas Republicans don't want to do, and so there are probably going to be significant fights about whether they're obligated to do that under the Voting Rights Act and other laws."
It’s worth remembering what's on the table: Texas' 36 congressional seats, which could increase to as many as 39 in 2022. A prize like that could determine who controls the U.S. House of Representatives itself for much of the next 10 years.
After the 2010 Census, Li said, "Texas last time saw litigation that lasted almost all of the decade, and that's not new."