No Taxation Without Representation Redux

The slogan "No Taxation Without Representation" summarized a primary grievance of the American colonists during the 1750s and 1760s and was one of the major causes of the 1776 revolution. The lack of representation was more obvious 242 years ago but it is nevertheless true today. Modern Americans suffer the same plight due to extreme partisan gerrymandering.

When voters aren’t able to choose their representation fairly it’s the same as not being represented at all so they are taxed without representation. In addition many of their other concerns are left unmet or even opposed unjustly.

Texas is a prime example of gerrymandering, our state has 36 congressional districts. In the 2016 election the vote split for president was approximately 55% to 45% so you’d expect that Republicans would hold about 20 seats and Democrats 16 but our state is gerrymandered such that Republicans hold 25 seats and Democrats 11. Numerous other states suffer similar unsupportable distribution of seats for the same reason.

Elected officials drawing the district maps use sophisticated analysis to create districts that favor one party or another. Packing refers to drawing districts in such a way as to maximize the number of disfavored voters in the fewest possible districts. Cracking refers to a technique that splits disfavored groups of voters into districts with majorities of the favored party’s voters so that they’re unable to amass a majority in any district therefore blocking them from selecting a representative of their choice. Both techniques are outlawed by the Voting Rights Act (VRA) and a number of states and smaller jurisdictions including Texas were once required to get approval from the Justice Department before finalizing redistricting due to prior bad behavior. Unfortunately the Supreme Court overturned Section IV of the VRA which covered pre-clearance in 2013 and parties in power in many states let fly with bad behavior that had previously not been permitted.

Last summer a three-judge panel of a federal district court ruled 2-1 that the drawing of two Texas congressional districts, the 27th and 35th, violated both the Constitution and the Voting Rights Act. The panel issued a similar ruling on maps for the Texas state House of Representatives. In early September the Supreme Court in a 5-4 ruling issued a stay of the order which means that this year we’ll again use the unconstitutional maps for our elections.

The Supreme Court currently has three gerrymandering cases from Wisconsin, North Carolina and Maryland before it. In the case of Maryland it’s the Democrats playing dirty. We can expect decisions in these cases by the end of the current term this summer.

Even if the Supreme Court rules against the states which have gerrymandered districts the ruling won’t have any effect until 2020 and by then many voters will have gone nearly a decade without fair representation. Worse yet, unless the court invokes a portion of Section 2 of the VRA known as bail in, which would require offending jurisdictions to once again submit redistricting for pre-clearance, we’ll just go through the same decade long legal stand-off all over again after the 2020 census invokes redistricting in 2021.

There is a solution to all this, Texas could follow Austin’s lead and create a citizens redistricting commission which would be tasked with creating fair district maps without regard to partisanship. Common Cause Texas proposed such a bill last session and it was filed by Representative Victoria Neave but the Redistricting Committee chair failed to even call a meeting the committee so neither it nor any other proposal even got a hearing. Hopefully the Texas legislature does better in 2019.