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Brian Lehrer: It's Brian Lehrer on WNYC. We turn now to the redistricting battle in Texas. It's playing out in its next chapter today. Now that the Democrats from the state legislature have returned to the chamber, it's likely the Republican majority will vote to enable redistricting to add five congressional seats likely to go to Republicans that are currently held by Democrats. President Trump has been personally involved in this. Encouraging the Texas Republicans to basically help him keep a majority after next year's midterms. Now, the larger questions, which we'll also get into, are whether that would pervert democracy, whether it would violate the Constitution, even. Whether it would violate the Voting Rights Act. This is a very important piece of this conversation that may not be getting enough attention because minority voting power would be diluted. Also, whether the Supreme Court would even uphold that remaining pillar of the Voting Rights Act if the question comes before them. Another question is, who started it? Republicans say they're responding to Democrats partisan gerrymandering in other states.

We'll try to fact check that. Of course, this matters so much because control of Congress next year will matter so much to so many kinds of policy that affect so many Americans. Our guest on this is Jeffrey Wice, distinguished adjunct professor and senior fellow at New York Law School, where he directs the New York Census and Redistricting Institute, but he is also one of the country's foremost experts on all things redistricting and gerrymandering around the United States. Professor Wice, thanks for coming on for this. Welcome back to WNYC.

Jeffrey Wice: Thank you for having me on. I appreciate it.

Brian Lehrer: Can you start with just the latest news as you're watching it develop? What is the Texas Legislature trying to do or likely to do now to change what kinds of congressional districts there are in the state?

Jeffrey Wice: Well, the Texas Legislature, which met in the last few weeks, who tried to meet but couldn't get a quorum because most of the Democrats left the state to prevent a quorum or enough members for the legislature to act. The governor has called the legislature back again and the Democrats, having declared victory in publicizing this issue across the country so that people are aware of what's going on, they're back in session. It's expected this week that the Texas Legislature will vote to approve a new congressional map that will help the Republicans win as many as five districts.

At the same time, in California, Governor Gavin Newsom, a Democrat, has put forward a congressional plan that if the California Legislature approves it and then goes to a vote for approval of the voters in November, then California could possibly knock out five Republicans. What we're seeing now is the unfortunate beginning of a power race to see how many safe Republican or Democratic seats can be set up going into the 2026 elections to help Donald Trump retain his majority.

Brian Lehrer: We'll get more into Gavin Newsom in California and Governor Hochul in New York in this respect. We have a clip of her talking with Texas Democrats, Illinois also. Are there rules about this, at the state or federal level, about what you can do and what you cannot do?

Jeffrey Wice: Well, the federal rules are somewhat minimal. We have the historic mandate of one person, one vote. That congressional districts must be equipopulous. That each district within a state has to have basically the same number of people. We also have the federal Voting Rights Act, which kicks in where in situations of polarized voting, where minority candidates have sizable population numbers but can't win elections, then the Voting Rights Act kicks in and requires that certain districts be created or maintained. We have state rules that vary state to state, but might lay out the criteria, the rules, the process.

I'll note that the US Supreme Court, in a decision 20 years ago when Texas did the same thing, then House Majority Leader Tom DeLay put forward a plan to help the Republicans pick up more districts. The Supreme Court held that there is no federal bar to redistricting or redrawing congressional lines during mid-decade, unless state law prohibits that. New York law prohibits that.

Brian Lehrer: Even though the Constitution says redistricting will take place every decade after the census, right?

Jeffrey Wice: That's true. Yes.

Brian Lehrer: The voting rights aspect of this, as I said in the intro, I think is so important and maybe not getting enough attention. What does the Voting Rights Act say? Tell us more. You referred to it briefly. Because from the reporting I'm seeing, Democrats will file suit, claiming a violation of the Voting Rights Act because these new presumed Republican lines in Texas will probably deprive Black and Latino voters of voting power to select representatives, that they currently have.

Jeffrey Wice: Right. What's going on now is a fight over whether race matters or politics matter. The Voting Rights Act, which was enacted in 1965, in a section called Section 2 of the Voting Rights Act, prohibits minority vote dilution. If you have a situation where you have a ideal district population size where, let's say, Black voters or Hispanic voters make up a majority of an ideal district, and you can show that the white voters deny the majority Black or Hispanic voters or Asian American voters the opportunity to elect their preferred candidates, then you have a Voting Rights Act violation.

You're required to create a district to maintain or provide an opportunity for the minority voters to elect their preferred candidate. What the Republicans are arguing in Texas is that they're not using race as their driving factor, they're using politics. There's a big debate going on now whether you balance race against politics, back and forth, but the crux of it is in Texas now that the plan that's being voted on this week would eliminate two Black districts in Texas. The Republicans argue that they're not denying minority voting rights, just simply playing politics here, which is legal.

Minority groups are saying, "You cannot eliminate a minority district." This is also an issue that the US Supreme Court will visit in October, over a case challenging the congressional lines from Louisiana. There's a big open question on balancing race against politics, but suffice it to say that if you eliminate a minority district, you can show a high level of polarized voting, you've got a problem with the Voting Rights Act.

Brian Lehrer: You're a law professor. I don't know if you read The New York Times legal analyst, Adam Liptak's, recent article about the Supreme Court and what remains of the Voting Rights Act, was the framing. The Supreme Court, a few years ago, did eliminate a big chunk of the Voting Rights Act. This not diluting minority voting power is the remaining, or one of the remaining pillars. That issue you were just discussing, where the court in the Louisiana case might decide, "Well, where's the line between partisan gerrymandering, which is okay, and racial gerrymandering, which is not okay?"

If Black voters tend, in large percentages, to vote Democrat, how do you tell the difference? That's a dilemma for the court. Do you think the court might go so far as to say, "Well, no, there shouldn't be any racial preferences." Even these kinds of not diluting the historically diluted voting power of especially Black Americans, even trying to do that structurally now violates the 14th Amendment or something. The way they overturned affirmative action.

Jeffrey Wice: Right. Well, the Supreme Court, about two or three years ago, upheld a challenge to an Alabama congressional redistricting plan enacted in 2021 that failed to create a second Black district. A second district to allow Black voters to elect their preferred candidate. In the challenge, the Supreme Court very clearly upheld the Voting Rights Act, saying that, "You have a clear cut situation here where two rather geographically compact districts, where there's a high level of polarized voting against Black voters, that two districts can be created. That's pretty firm in the law.

The question now is, this comes out of Louisiana. Louisiana also, in their redistricting for congressional districts, drew one district and not a second one. The lower courts found that there was a Voting Rights Act violation. That Louisiana was required to create a second Black opportunity district. The legislature passed a plan that created two districts, but the problem was that to create those two districts, they also wanted to protect all of the incumbent members, including House Speaker Mike Johnson, a Republican.

To do that, they had to create strangely shaped districts. Where white voters came in and said, "Wait a second. If you create these crazy districts, these misshapen districts," that that is a violation of their voting rights. The Supreme Court heard that case earlier this year and couldn't decide. In June, when they adjourned for the summer, they wanted to hear the case all over again. Which means that something is going on there and we won't really find out until after the arguments in October, and a decision later this year. It's a question that vexes a lot of people as to, how do you comport with the Voting Rights Act, but also draw plans to advantage your political party? It's a vexing issue.

Brian Lehrer: Mary in Brooklyn says she used to live in Texas. Mary, you're on WNYC. Thank you for calling in.

Mary: Hi, there. How are you? Thank you for taking my call. I just wanted just to come on and say, yes, living in Houston, I was actually in Sheila Jackson Lee's district. Soon after she passed, Mayor Sylvester Turner took over. Unfortunately, he then passed. With that, the governor should have had a special session to fill that--

Brian Lehrer: Did we lose-- oh, we lost Mary's line. I don't know what happened there. Mary, call back. We'll put you back on. It does kind of set up the other question that I said we would come back to. Texas Republicans say Democrats started it. Pointing to states including Illinois, California, and New York. We did a segment recently with two of the leaders of the New York State Legislature who are going to try to put something on the ballot for New Yorkers this fall that would allow mid-decade redistricting despite the Independent Redistricting Commission that New York has, that's supposed to keep it from being too partisan in New York State.

Their main point, these Democratic legislators, was, "Texas is starting this. We can't unilaterally disarm and let them unbalance Congress in that way. So we have to respond." Then I see on Fox and elsewhere, where Republicans are going out and saying, "The Democrats started this and we are responding." What's the truth?

Jeffrey Wice: Yes, it's hard to imagine the Democrats starting the current war going on. When you look at the control of state legislatures nationally, Republicans control a lot more of the states than the Democrats do. At the starting gate, they've got an advantage. When you look at the maps that the Republicans drew and the Democrats drew, Republicans drew just as many gerrymander districts in North Carolina as they might allege that Democrats did in Illinois. There's not much truth to that argument, the way I look at it.

They mentioned that New York started the fight. Well, it's really a misnomer here. If the New York process worked as it was supposed to have worked vis-à-vis a constitutional amendment that the voters approved back in 2014, redistricting would have been developed by a commission appointed by the legislature and then approved by the legislature in time for the 2022 elections. That didn't happen. The New York commission process fell apart. It imploded. We ended up in 2020-

Brian Lehrer: It was supposed to be kind of a consensus process by the commissioners who would be appointed, some by Democrats and some by Republicans, but they actually couldn't come to that bipartisan consensus. It failed in that way, right?

Jeffrey Wice: Yes, you had a five Democrat, five Republican commission that just couldn't agree. The legislature tried to step in and the court said, "No, because of the intricacies of the process, you can't act yet until the commission does all of its work." The court eventually ordered the commission to go back to work in 2023, send a map to the legislature, and that happened. The legislature took that map, voted it down, and then according to the state law, was able to then tweak it and pass a map of its own.

In 2024, early that year, the legislature, in a bipartisan effort, and I mention this importantly that it was bipartisan, followed the court order to finish the process, and they adopted a final map to be used in the 2024 elections. That was passed with both Democratic and Republican support in Albany. That was not a redistricting, a mid-decade redistricting. It was pursuant to a court order. There's a difference there. New York really should not be fingered, blamed for starting this any which way you look at it.

Brian Lehrer: Mary, who is originally from Texas and now lives in Brooklyn, is back. Mary, I'm not sure what happened to your line, but I'm glad you called back. Hi, you want to finish your story?

Mary: Yes. Hi. Thank you so much. Basically, I was just saying that usually around, and obviously, when a person passes, or a predominant figure passes, that the government is supposed to have, in Texas, a special session to fill that seat, to represent the constituents of that district. From what I know of what had happened, that didn't end up happening. That was actually put off, postponed, and that just signaled to me that, in my opinion, that that's just setting up basically what is happening now. What we're seeing is Republican control for the long term.

It's unfortunate that Greg Abbott had to, for the special session that he was supposed to be calling for the tragedy that happened in Kerrville, this is where it's going. That's my thought.

Brian Lehrer: Thank you very much for telling that illuminating story. Victor in Somerville has a question for Professor Wice. Victor, you're on WNYC. Hi.

Victor: Hi, Brian. This is Victor. Thanks for taking my call. A big supporter and listener of the program.

Brian Lehrer: Thank you.

Victor: I have a question for Professor Rice.

Brian Lehrer: Wice.

Victor: Why can't Congress just pass a federal law for independent commissions to redistrict every 10 years? This would avoid all this gerrymandering nonsense for political purposes like we're seeing in Texas.

Brian Lehrer: Thank you, Victor. Could Congress do that if they were able to get some kind of bipartisan buy in?

Jeffrey Wice: That's a great question. The House of Representatives actually did that when the Democrats were in control two or three years ago. They passed the John R. Lewis Voting Rights Act, which would have set in place standards for congressional redistricting for all the states, including a requirement that states redistrict through really independent commissions. That we only limit districting to once every decade and would take this out of the hands of state politicians, but develop national standards. That bill was killed in the Senate because the Democrats, although they held the majority, didn't have enough votes to pass the bill.

The chances now of a Republican held Congress enacting this bill, which is still a live bill that was reintroduced in the House again, are pretty nil. Especially given what you're seeing going on in the country. If the Democrats win a majority after 2026, that bill could become a live item again, but so far it's not going anywhere.

Brian Lehrer: It's too bad for democracy, isn't it? If we just go down this rabbit hole of the blue states create congressional districts that favor Democrats more than the percentage of Democrats in the actual population, and the red states do that for Republicans, and people get even more divided up into congressional districts based on what party they're in. It's a formula for more polarization, isn't it? Because there would be fewer members of Congress who have to appeal to politically mixed constituencies to get elected.

Jeffrey Wice: I agree. In the last 20 years, you've seen an effort by a number of states to create independent processes. California, Michigan, Colorado, Arizona, New York-

Brian Lehrer: New York.

Jeffrey Wice: -to a degree. Now, with what's going on in Texas and other states, it's going to be hard to see states trying to move towards more independent way of redistricting until this arms race stops, or until Congress passes a uniform law, which it has the power to do.

Brian Lehrer: It's just another example of how restraint is very out of style in politics right now. Last question. We just have a minute left. This is kind of an addendum. It's on another topic, but it's a very related topic and it's in the news the last 24 hours. Listener asks, "Good morning. Please address also wanting to try to eliminate mail-in voting." Trump did say that yesterday, right? He wants to totally eliminate mail-in voting.

Jeffrey Wice: Well, he did say that. He has no power to do so. The Constitution clearly gives the states the ability and the right to determine how elections are going to be held. Donald Trump can lead a movement if he wants, but he has no power to initiate or order anything from happening. That's going to be left up to each state individually. The feedback I've heard from both Republican and Democratic states is, no, thanks.

Brian Lehrer: Jeffrey Wice, adjunct distinguished professor and senior fellow at New York Law School, where he directs the New York Census and Redistricting Institute. Thank you for all your insights on this vitally important topic.

Jeffrey Wice: Thank you, Brian.

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