                                   ATTORNEY GENERAL OF TEXAS
                                                  GREG          ABBOTT




                                                       April 23,2003



The Honorable Joe Crabb                                               Opinion No. GA-0063
Chair, House Committee on Redistricting
Texas House of Representatives                                        Re: Whether the Texas Legislature is required
P-0. Box 2910                                                         to undertake congressional redistricting for the
Austin, Texas 787682910                                               electoral period 2003-2010 (RQ-0017-GA)

Dear Representative         Crabb:

        You ask about the Texas Legislature’s legal rights and responsibilities                          in connection          with
congressional redistricting following the 2000 census.’

         The Seventy-seventh Legislature failed to enact a redistricting plan for the United States
 House of Representatives, and a three-judge federal court therefore created a plan used for the 2002
 general election. See Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D. Tex. Nov. 14,2002) (per
 curiam), afyd mem., 122 S. Ct. 2583 (2002).* You first ask whether the map drawn by the three-
judge panel was “a de novo map for the 2002 elections,“3 because the legislature had not acted.
Request Letter, supra note 1. You also ask whether the Texas Legislature has a “mandated
responsibility to enact a permanent map for the electoral period 2003 through 20 10.” Id.

        The United States Constitution provides that “Representatives shall be apportioned among
the several States according to their respective numbers, counting the whole number of persons in
each State,” U.S. CONST. amend. XIV, 8 2, as determined by the decennial census, id. art. I, 8 2, cl.
3.4 The states have the primary duty and responsibility to redraw their congressional districts in



         ‘See Letter from Honorable Joe Crabb, Chair, House Committee on Redistricting, to Honorable Greg Abbott,
Texas Attorney General (Feb. 11, 2003) (on file with Opinion Committee) [hereinafter Request Letter].

           2The opinion and judgment inBaZderas v. Texas can be found at http://nis 1 .tlc.state.tx.us/static/pdf/opinion.pdf
and http://gisl.tlc.state.tx.us/static/pdf/judgment.pdf respectively.

          31n this context, “de novo” means “new.” See IV OXFORD ENGLISH DICTIONARY 280 (2d ed. 1989).

          4Article I, section 2, clause 3 provides that “Representatives   and direct Taxes shall be apportioned among the
several States which may be included within this Union,” according to an apportionment method that has been amended
by the Fourteenth Amendment.         It also states that “The actual Enumeration shall be made within three Years after the
first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as
                                                                                                               (continued.. .)
The Honorable       Joe Crabb - Page 2                   (GA-0063)




compliance with the United States Constitution.      See Growe v. Emison, 507 U.S. 25, 26 (1993).
Article I, section 4 states explicitly that “The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the Legislature thereof. . . .” U.S.
CONST. art. I, $ 4.      The Texas Legislature is vested with the authority to redistrict Texas
congressional seats pursuant to article III, section 1 of the Texas Constitution, which provides
generally that “The Legislative power of this State shall be vested in a Senate and House of
Representatives,   which together shall be styled ‘The Legislature of the State of Texas.“’ TEX.
CONST. art. III, 8 1; see also Perry v. Del Rio, 67 S.W.3d 85,91 (Tex. 2001).

          The apportionment provisions of the United States Constitution require states to establish
congressional districts substantially equal in population. See Wesberry v. Sanders, 376 U.S. 1, 8
(1964).5 The state’s population increase, reflected in the 2000 census, entitled Texas to two
additional congressional seats and required the redrawing of the congressional districts that were
based on outdated 1990 census data. See Perry v. Del Rio, 67 S.W.3d 85, 89 (Tex. 2001) (citing
U.S. CONST. amend. XIV, 5 2); Perry v. Del Rio, 66 S.W.3d 239,242 (Tex. 2001). The Seventh-
seventh Legislature adjourned, however, without adopting a congressional redistricting plan, and
multiple lawsuits were filed in state and federal courts against the state, state officials, and political
party officials challenging the constitutionality  of existing congressional district boundaries and
seeking declaratory and injunctive relief. See, e.g., Mayfield v. Texas, 206 F. Supp. 2d 820 (E.D.
Tex. 2001) (dismissing case for plaintiffs lack of standing and lack of ripeness); Perry v. Del Rio,
66 S.W.3d at 242 (determining that Travis County district court had dominant jurisdiction over the
various cases filed in Texas state courts). A Travis County district court issued a congressional
redistricting plan, see Del Rio v. Perry, No. GNO03665 (353d Dist. Ct., Travis County, Tex., Oct.
10, 2001), which the Texas Supreme Court held unconstitutional because the district court had
adopted the plan without giving the parties an opportunity for a meaningful hearing. See Perry v.
Del Rio, 67 S.W.3d at 93-94.

          The United States Supreme Court has repeatedly stated that “legislative reapportionment is
primarily a matter for legislative consideration and determination,” ReynoZds v. Sims, 377 U.S. 533,
586 (1964), because an elected legislature is the institution best positioned to reconcile conflicting
goals in the people’s name. Judicial relief in this area-when      courts are forced to act in a pseudo-
legislative capacity-should      be exceedingly rare. When, however, a state legislature fails in its
constitutional responsibility to redistrict timely according to federal constitutional requisites, and
state courts subsequently fail to produce a valid plan, it throws to the federal courts “the unwelcome



          4(. . .continued)
they shall by Law direct.”

          ‘The congressional redistricting plan must also be consistent with section 2 of the Federal Voting Rights Act,
42 U.S.C. 9 1973 (2000), which protects the voting rights of minority groups. See Bush v. Vera, 517 U.S. 952, 976
(1996). In addition, section 5 of the Voting Rights Act requires Texas and certain other states to obtain prior federal
approval, or preclearance, of a redistricting plan or other change in election procedures. See 42 U.S.C. § 1973~ (2000);
28 C.F.R. $6 51 .l, 51.4 (2003); id. pt. 51, app. A voting change will be precleared if the state proves that the change
does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color,
or membership in a language minority group. See 42 U.S.C. $ 1973~ (2000).
The Honorable           Joe Crabb - Page 3                    (GA-0063)




obligation of performing in the legislature’s stead, while lacking the political authoritativeness                          that
the legislature can bring to the task.” Connor v. Finch, 431 U.S. 407,415 (1977).

         Mindful that federal courts “have a limited role in crafting a congressional redistricting plan
where the State has failed to implement a plan,” Balderas, No. 6:01-CV-158, slip op. at 4, the three-
judge federal court in Balderas initially deferred to the State of Texas until the Texas Supreme Court
on October 19, 2001 held the state district court plan unconstitutional, leaving the “federal courts
with no choice but to proceed without the benefit of a state plan.” Id.; see also Perry v. Del Rio, 67
S.W.3d at 95. “Starting with a blank map of Texas” and “without a state baseline plan in place,”
Balderas, No. 6:01-CV-158, slip op. at 4-5, the three-judge panel proceeded to trial, hearing
testimony and taking evidence on various congressional redistricting plans submitted to it. See id.
at 4. After reviewing the evidence and the parties’ submissions, the court applied “neutral districting
factors” and produced a congressional redistricting plan for Texas, identified as Plan 115 1C! See
id. at 1,5. (Final Judgment). In answer to your first question, the Balderas court drew a new Texas
congressional map without having a baseline state plan to work from.

        You also ask whether the court’s plan applies only to the 2002 election cycle. On this point,
the court’s opinion and final judgment are silent. The court’s final judgment states as follows:

                       For the reasons expressed in the court’s per curiam decision issued
                       today, the court renders judgment declaring that the existing
                       congressional districts in the State of Texas are unconstitutionally
                       malapportioned    and adopting Plan Il.51 C as the remedial
                       congressional redistricting pZan for the State of Texas.

Balderas, No. 6:01-CV-158, slip op. (Final Judgment) (emphasis added). The final judgment, by
its literal terms, adopts Plan 115 1C as the “remedial congressional redistricting plan for the State of
Texas.” Id. No language in Balderas mandates application of Plan 115 1C through 2010, and no
court order properly could bar a legislature from performing the legislative task of redrawing lines
and enacting a constitutionally acceptable plan for future elections. Absent restraints imposed by
state law, a state may redraw its congressional districts more often than every ten years. See
Reynolds, 377 U.S. at 584; French v. Boner, 786 F. Supp. 1328 (M.D. Term.), afd, 963 F.2d 890
(6th Cir.), cert. den. sub. nom. French v. Metro. Gov ‘tof Nashville & Davidson County, Tenn., 506
U.S. 954 (1992).

         The United States Supreme Court has reminded parties on many occasions that
“‘reapportionment is primarily the duty and responsibility of the state through its legislature or other
body, rather than of a federal court.“’ Growe, 507 U.S. at 34 (quoting Chapman v. Meier, 420 U.S.
1, 27 (1975)); see also, e.g., Branch v. Smith, 123 S. Ct. 1429, 1444 (2003) (“it certainly remains
preferable for the State’s legislature to complete its constitutionally required redistricting”); Perry
v. Del Rio, 67 S.W.3d at 91 (“The Legislature is the department constitutionally         responsible for



              6Plan 115 lC, produced by the Balderas court, is available at the Legislative Council’s Redistricting site:
http://gisl    .tlc.state.tx.us/static/pdflC115 1.pdf (Plan), and http://nisl .tlc.state.tx.us/static/pdf/planc0115 lm.pdf (Map).
The Honorable Joe Crabb - Page 4                       (GA-0063)




apportioning the State into federal congressional legislative districts.“). In 2002, the three-judge
court in Balderas confronted the “unwelcome obligation of performing in the legislature’s stead,”
Connor, 431 U.S. at 415, and was forced to draw a remedial plan because Texas’ elected
representatives failed to redistrict in accordance with the Constitution after the decennial census
results were published, and no state court produced a valid plan after the legislature adjourned.

         This federal court-drawn map, however, is only effective unless and until the Texas
Legislature redraws it-that is, unless and until lawmakers “renew and continue efforts to fulfill their
constitutional duties.” CoZZeton County Council v. McConnell, 201 F. Supp. 2d 618,630 (D.S.C.
2002). The court’s admonition to the state’s legislative branch in CoZZeton Co. is instructive:

                  Like our predecessors faced       with the task in the 1990s’ we encourage
                  the General Assembly and          the Governor to work together to adopt
                  any plan that could improve        upon what we have done. They are, of
                  course, in the best position      to do so. We have done our best in the
                  interim.

Id. at 668 (stressing the court’s plan was merely a temporary, stop-gap remedy).

         Likewise, Texas legislators are entirely free to replace the court-ordered plan in Balderas and,
as the court urged in McConnell, “continue efforts to fulfill their constitutional duties” as elected
representatives to enact a congressional redistricting plan that comports with section 5 of the Voting
Rights Act. Id. at 630; see also id. at 671 (Order of Clarification).

         You finally ask whether the Texas Legislature has a mandated responsibility to adopt a
permanent map for the electoral period 2003 through 2010. We first note that the Texas Legislature
plainly has authority to adopt a congressional redistricting plan based on the 2000 census. Nothing
in the Balderas court’s opinion or any other legal authority suggests that the Legislature would be
foreclosed from exercising its constitutional responsibility to adopt a new congressional redistricting
plan. See Reynolds, 377 U.S. at 584; French, 786 F. Supp. at 133 1 n.4. The Texas Constitution
provides as follows for redistricting the Senate and House of Representatives            of the Texas
Legislature:

                  The Legislature shall, at its first regular session after the publication
                  of each United States decennial census, apportion the state into
                  senatorial and representative districts, agreeable to the provisions of
                  Sections 257 and 26* of this Article. In the event the Legislature shall



          7Article III, section 25 of the Texas Constitution provides that “The State shall be divided   into Senatorial
Districts of contiguous territory, and each district shall be entitled to elect one Senator.”

          sArticle III, section 26 of the Texas Constitution provides that “The members of the House of Representatives
shall be apportioned among the several counties, according to the number of population in each, as nearly as may be,
on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by
                                                                                                          (continued...)
The Honorable Joe Crabb - Page 5                          (GA-0063)




                   at any such first regular session following the publication of a United
                   States decennial census, fail to make such apportionment, same shall
                   be done by the Legislative Redistricting Board of Texas . . . .

TEX. CONST.        art. III, § 28.       The Texas Constitution            is silent, however,         as to establishing
congressional     districts.

          The federal district court with jurisdiction over lawsuits involving the Texas congressional
redistricting plan based on the 1990 census, see Vera v. Bush, 861 F. Supp. 1304 (S.D. Tex 1994),
afyd, Bush v. Vera, 5 17 U.S. 952 (1996)’ expressly recognized that the Texas Legislature had
authority beyond its 1991 session to adopt a congressional redistricting plan. In 1996, the court
adopted an interim redistricting plan for the 1996 elections and directed the “Texas Legislature to
draft congressional redistricting legislation for future elections by June 30,1997.” See Vera v. Bush,
933 F. Supp. at 1342, 1353. When the legislature did not adopt congressional redistricting
legislation in 1997, the federal court left the 1996 interim plan in place but recognized the possibility
that the legislature might subsequently adopt its own plan. See Vera v. Bush, 980 F. Supp. at 252-53.
See also Tex. Att’y Gen. Op. NO. WW-118 (1957) (considering the validity of congressional
redistricting legislation proposed for adoption in 1957). Accordingly, the Texas Legislature has
present authority to adopt a congressional redistricting plan based on the 2000 census. If it does so,
Texas must obtain preclearance of the plan under the Voting Rights Act. See 42 U.S.C. 5 1973~
(2000).

         While the United States Constitution entrusts states with the primary duty and responsibility
to redraw their congressional districts, U.S. CONST. amend. XIV, 8 2, and the Texas Constitution
vests redistricting authority in the Texas Legislature, see TEX. CONST. art. III, $5 1’28, there exists
no mechanism for enforcing this duty. See generally Tex. Att’y Gen. Op. No. O-6488 (1945)’ Tex.
Att’y Gen. Op. (To Hon. H.B. Hill, July 2 1,1921), 1920-l 922 TEX. ATT’Y GEN. BIENNIAL REP. 188
(constitutional provisions requiring legislature to redistrict Texas House and Senate are mandatory
in form, but impose no penalty for nonperformance nor provide any other enforcement mechanism).’
The separation of powers doctrine protects the judiciary’s ultimate authority to declare what the law
is and what it requires, but the doctrine prevents judicial usurpation of duties that are committed by
constitutional command to the legislative branch. See TEX. CONST. art. II, 8 1 (providing for
separation of powers and allocating sovereign powers among the coordinate, co-equal branches);”


         “(. . .continued)
the number of members of which the House is composed.”

            91n a pending case, a court may “direct” the legislature to adopt a redistricting plan within a specified time, and
if the legislature fails to do so, the court may proceed to promulgate its own redistricting plan. See Connor v. Williams,
404 U.S. 549,552 n.4 (1972); Moss v. Burkhart, 220 F. Supp. 149,155 (W.D. Okla. 1963), afd sub nom. WiZZiams v.
itfoss,378U.S. 558(1964) (p er curiam); Reynolds, 377 U.S. at 586-87 (approving the district court’s action in ordering
redistricting of the Alabama Legislature); Terrazas v. Ramirez, 829 S.W.2d 712, 718 (Tex. 1992).

         ‘“Article II, section 1 of the Texas Constitution provides that “The powers of the Government of the State of
Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy,
                                                                                                            (continued.. .)
The Honorable      Joe Crabb - Page 6                    (GA-0063)




Denison v. State, 61 S.W.2d 1017,1019 (Tex. Civ. App.-Austin), writ reyd, 61 S.W.2d 1022 (Tex.
1933) (per curiam) (courts lack authority to control the legislature’s exercise of discretion).
Consequently, while courts are empowered to resolve congressional redistricting controversies if the
legislature fails to fulfill its duty, courts cannot mandate that the legislature summon political will
or muster consensus. There is no judicial remedy to counter legislative noncompliance. A court can
only devise and impose its own map and invite lawmakers, the people’s elected representatives, to
improve upon it. The difficulties of harmonizing competing legal doctrines, the expense of
protracted litigation, and the inherent electoral calculations may entice states to defer to the courts
for a definitive resolution, but these political challenges are precisely and properly entrusted to duly
elected state legislators, not judges, and legislators should not flinch from their constitutional duty
to enter the “political thicket” of redistricting. Gafiey v. Cummings, 412 U.S. 735, 750 (1973).

          We conclude that the Texas Legislature has the authority to adopt a congressional
redistricting plan for the electoral period 2003 through 2010, but it cannot be compelled to do so.
Redistricting is an inherently and intensely political task for which courts are ill-suited, butif the
Texas Legislature does not adopt a congressional redistricting plan, Plan 115 1C drawn by the three-
judge court in Balderas v. Texas will remain the congressional redistricting plan for Texas. See
Perry v. Del Rio, 67 S. W.3d at 89 (“Because the Legislature never enacted a new plan, the federal
court’s remedial order . . . remained in effect for future elections.“).




          “(...continued)
to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another;
and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached
to either of the others, except in the instances herein expressly permitted.”
The Honorable   Joe Crabb - Page 7              (GA-0063)




                                         SUMMARY

                         The Texas Legislature is constitutionally    responsible for
                apportioning the State into congressional districts. Neither the Texas
                Legislature nor a Texas state court, however, approved a valid plan
                for redrawing the state’s congressional districts. The federal court in
                Balderas v. Texas, No. 6:01-CV-158, slip op. (E.D. Tex. Nov. 14,
                2002)’ aff’d mem., 122 S. Ct. 2583 (2002)’ created a new
                congressional redistricting plan for Texas without having a baseline
                state plan before it.

                          The United States Constitution entrusts the task of drawing
                congressional boundaries to the State, but there exists no mechanism
                to force compliance with this constitutional responsibility. The Texas
                Legislature has present authority to adopt a congressional redistricting
                plan based on the 2000 census. Unless and until the legislature
                adopts such a plan, the map drawn in 2002 by the three-judge court
                in Balderas v. Texas will continue to be the congressional
                redistricting plan for Texas.

                                                Very truly yours,




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee
