Aug.05

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Trump On the Wrong Side of the Issue, Part I: The Texas Gerrymander

The endeavor to re-gerrymander the Texas congressional districts has become almost comical in the last 24 hours. And while Gov. Greg Abbott (R-TX) is the point man, the whole scheme was at the instigation of Donald Trump, which is why we wrote the headline that we did.

As we noted yesterday, the Democrats in the Texas legislature are, by dint of the rules that govern that entity, a very silent minority. And so, when it comes to this gerrymandering scheme, they have exactly one viable tool at their disposal: quorum-busting. The Democratic members have decamped to other states, mostly Illinois, where Gov. J.B. Pritzker (D) is providing housing and security.

Abbott started his day yesterday by whining that the Democrats' maneuvering is "outrageous." Pot, meet kettle. He then moved on to two different approaches to solving the problem, rooted in legal theories that are mutually exclusive. The first approach was to invoke a provision of the Texas State Code that says that an office can be declared vacant if its holder has been found to have "abandoned" it. So, the general idea is that it would be declared that the rebellious Democrats have vacated their seats, reducing the number of members in the legislature, and making it possible for the Republicans to achieve quorum all by themselves.

There are several problems with this approach, however. To start, and for obvious reasons, the decision of "Is the office abandoned?" is not in the hands of the governor or the members of the legislature. No, it's a decision that has to be made by a judge. And with roughly 60 cases to be adjudicated, it would take some time to reach a resolution. It is also far from guaranteed that a bunch of judges would agree that leaving town for a week or two, even while the legislature is in session, constitutes "abandonment."

Presumably aware that the abandonment approach is probably a dead end, Abbott eventually moved on to a different approach, arguing that the members have broken the law by leaving the state, and so are subject to arrest. To that end, he arranged for the speaker of the Texas House to issue warrants for the arrest of the quorum-jumping Democrats.

This approach is another dead end, and Abbott very well knows it. He endeavored to frame his announcements in a manner meant to imply that some actual crime had taken place, using phrases like "dereliction of duty" (a crime for soldiers, perhaps, but not state legislators) and declaring that he was going to have the Texas Rangers look into the possibility of bribery or fraud. But the fact is that skipping work is not a crime, and the warrants only carry the force of law within Texas' borders. If they were legitimate criminal warrants, then Abbott could ask for the members to be arrested and extradited back to Texas. But they are not criminal warrants because, again, you have to have a crime first.

What it amounts to is that the Governor and the Democratic legislators are now engaged in something of a chess game. Ultimately, if the maps are going to be changed, it will need to happen by the end of the year. Could the Democrats plausibly run out the clock? Maybe. It would not be easy, but it's not impossible, either. Keep in mind that the legislature is in special session right now. By Texas law, the session cannot last longer than 30 days. So, this particular special session will expire on August 21. Abbott is free to call as many additional special sessions as he wishes, but there are some practical considerations imposed by: (1) the ability of Republicans to attend, and to travel to Austin and (2) the holidays. Also, the Democrats can't be preemptively arrested for quorum busting; they actually have to quorum-bust first. So, if Abbott calls another session for, say, September 15, it's possible for the Democrats to take another vacation, starting September 14. And all of this maneuvering would be in service of a gerrymander that could become a dummymander. The time might come that maybe Abbott will be forced to concede it's not worth it.

Whatever ultimately happens in Texas, both Abbott and Trump are getting a lot of attention right now for maneuvering that is fundamentally undemocratic, and is fundamentally about denying many Americans a voice in their own governance. This is not a popular position. Consider the states that have adopted some sort of commission to draw district boundaries:

The means by which commissioners are selected varies widely by state, and is often very complicated. For example, here's the process in Virginia:

Majority and minority leaders of both houses of the legislature each select two members of their caucuses serve on commission. Separately, a panel of retired judges reviews applications from members of the public to serve as a citizen commissioner. The judges will submit the names of applicants who meet qualifications to the legislative leaders, who select 16 names for the retired judges from each caucus (Senate Majority, Senate Minority, House Majority, House Minority). The retired judges then select two citizen members from each leader's slate of 16. The chair of the committee must be one of the citizen members of the redistricting commission, and is selected by a full vote of the committee.

Regardless of how they get there, each state has pretty clear goals as to the partisan makeup of its redistricting commission. We did exclude Arkansas from the list, as their commission is made up of three officeholders, all of them Republicans. So, that one's just political theater, a performance of "fairness." We also excluded states where the commission is merely advisory.

In any event, as you can see, the table above is not a sea of blue. There are redistricting commissions in sapphire-blue states, in ruby-red states, and in many states shaded somewhere in between those two extremes (we coded anything D+3 to R+3 as purple). This backs up the general notion, also supported by polling, that opposition to gerrymandering crosses party lines. Democrats are probably a bit more anti-gerrymandering than Republicans are, but it's definitely a bipartisan position. And that's gerrymandering in general; the maneuvering being undertaken in Texas right now, by Trump and Abbott, is undoubtedly even less popular, as it is an obvious naked power grab.

At least one Republican member of the House has decided to step forward, and to push back against what's happening in Texas. That would be Rep. Kevin Kiley (R-CA), who is looking at a tough reelection campaign next year in his R+2 district. He announced yesterday that he will introduce legislation that prohibits the re-drawing of district maps more than once per census cycle. Kiley's announcement frames his bill as an attempt to rein in Gov. Gavin Newsom (D-CA). He is, after all, a Republican who needs Republican votes. However, the legislation would also put the kibosh on what Abbott is doing, and Abbott/Texas are much further along in the process than Newsom/California.

Our hope, given that gerrymandering is not only unpopular, but is being abused even more flagrantly than is normally the case, is that Congress will actually take some sort of action. We have no doubt that if the Republicans who control both chambers felt confident that Texas' maneuvering would give the GOP substantially better odds of holding the House, they would sit on their hands and do nothing. But between the risk of a dummymander, and of California and other blue states responding in kind, and the bad PR of anti-democratic maneuvering, the better part of valor, from a political perspective, might be to pass the bill introduced by Kiley, or some other such measure. (Z)