The GOP’s Secret to Protecting Gerrymandered Electoral Maps? Claim Privilege.

by Marilyn W. Thompson

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Eva Bonilla grows furious when she thinks about how Latino voters are treated by the Republican power structure in Texas. At 74, the small business owner watched the GOP Legislature pass a series of measures like a voter ID law that she felt would make it harder for Latinos to cast ballots or run for public office.

Two years ago, serving as the leader of a Hispanic women’s group in Fort Worth, she decided to strike back. The Republican Legislature had just pushed through new election maps that carved up Latino communities and made it even harder for them to elect candidates of their choice. So Bonilla joined other minority voters as plaintiffs in a federal lawsuit alleging intentional discrimination in the 2021 redistricting plan.

“I wanted to see the right thing done, and this is just not right,” she said.

Then Bonilla waited.

In 2022, an election came and went with districts based on the challenged maps. It has now achieved a dubious distinction: Of the 87 lawsuits filed over the 2021 congressional and legislative redistricting plans nationwide, it has dragged on the longest without having held a trial. As another election looms, a trial date has not even been set.

The reason? Republican leaders asserted their rights to block the most routine give-and-take of lawsuits, resisting handing over documents, providing discovery or submitting to depositions — in effect squashing Bonilla’s efforts to uncover how the 2021 maps were drawn. The lawmakers have done so by the rigorous use of two forms of privilege: the better known attorney-client privilege and what is known as legislative privilege, which allows elected members of state legislatures to deliberate in private.

As the Texas case drags on, legislatures across the country are making new and expansive claims of privilege to keep electoral maps in place and prevent the public from finding out how they made their decisions and why.

Texas lawmakers did not stumble upon these tactics on their own. A national GOP redistricting group helped train Republican lawmakers in Texas on how to approach lawsuits and raised money to pay legal costs. The lawmakers also passed a new law to further protect their deliberations. In addition, they put an outside political operative on the state’s payroll so that the legislative privilege could shield his activities. Finally, they relied on GOP map-drawers who worked for law firms, which allowed lawmakers to assert that the maps were “legal advice.”

Throughout, the Texas lawmakers have contended they did not discriminate against Latino voters.

In Louisiana, North Dakota and elsewhere, Republicans have resisted challenges to their maps by asserting privilege. In Washington, Democrats have done the same. Legal experts say the expanding use of privilege robs plaintiffs of key insights. To succeed in court, plaintiffs in many cases have to show legislators intended to discriminate. Without access, explained Harvard Law School professor Nicholas Stephanopoulos, it becomes “very difficult to prove intent even where it was actually present.”

The concept of legislative privilege is protected under the U.S. Constitution’s speech and debate clause, and 43 states have embedded it in their constitutions. Originally intended to protect legislators from criminal or civil claims for things they said on the floor, it has come to encompass lawmakers’ work-related communications. In theory, affording such protection allowed for frank conversations.

But in the past, people who wanted to scrutinize a legislature’s activities had another, if narrower, way to find out what was going on: They could file open records requests to get access to interactions lawmakers had with outside third parties, such as consultants or political operatives. In Texas and elsewhere, Republicans have succeeded in shielding even these once-public interactions.

Conservative judges in the 5th U.S. Circuit Court of Appeals, which covers several states including Texas, and the 8th Circuit, which covers the Dakotas, have recently sided with state legislatures that have used expanded privilege claims to prevent public review. Recently, Arizona Republicans appealed to the 9th Circuit to shield their deliberations.

Partisan battles have long been a staple of redistricting, which happens every 10 years. But as more states craft their new maps out of public sight, the fights are ending up in drawn-out court cases, with enormous consequences for voters. The lawsuits are taking so long to resolve that six states conducted their 2022 elections under maps that had been ruled illegal by lower courts, according to a recent analysis by Democracy Docket, a progressive website that tracks redistricting cases. They await resolution. Lawsuits challenging maps in seven other states were still awaiting court action when the elections took place.

The Texas GOP undertook its mapmaking effort as the state was undergoing a significant demographic shift. Latinos now slightly outnumber non-Hispanic white people in the state, and they and other minorities account for almost all population growth in the last decade, according to census data. Many of these new residents will likely vote for the Democratic Party. Through aggressive redistricting, however, Republicans have been able to maintain control of the Legislature, all major statewide offices and the state’s congressional delegation. And they grabbed one of the two new seats in Congress gained through the population increases.

“Elections can’t really be unwound. You can’t go back and change the composition of the Texas Legislature from 2022,” said Yurij Rudensky, senior counsel with the Democracy Program at the Brennan Center for Justice, a nonpartisan legal institute. The center represents a separate group of minority plaintiffs who are challenging the state’s maps. The Justice Department has joined the plaintiffs. “So using discriminatory districts cuts to the heart of our democracy.”

To reconstruct how Texas Republicans stalled the legal fight over their redrawn districts, ProPublica used federal court records in six states as well as interviews with experts, voters and former state officials. Combined they provide the fullest account yet of how state lawmakers hobbled the opposition and hidden their activities.

Keith Gaddie, a former bipartisan litigation consultant, said that in his experience, lawmakers keep their methods secret when they are aggressively gaming the process for political gain. “The more egregious the gerrymander, the less information can be made available about the process,” he said. “It’s a nasty, nasty business.”

The Plan

Redistricting in Texas was two years away when leaders of the Virginia-based National Republican Redistricting Trust flew into Houston for a poolside briefing for GOP supporters.

Established in 2017 to counter a similar Democratic Party redistricting operation, the NRRT and its nonprofit affiliate, Fair Lines America, had many Texas ties. Senior leadership included powerful Texan Karl Rove, a former White House official and longtime consultant to Texas governors.

At the closed event in 2019 in a Houston suburb, Texas GOP Chairman James Dickey mingled with party loyalists to discuss the two or three new seats they should get in Congress as the state’s population boomed, according to social media accounts and interviews. A young supporter took selfies with Washington influencers like James “Trey” Trainor, a Texas lawyer whose nomination by President Donald Trump to the Federal Election Commission was being blocked by Democrats because of his criticisms of campaign finance laws. On Instagram, the supporter described it as a helpful session on the “threats and opportunities redistricting presents.”

A photo from a redistricting briefing event hosted for GOP supporters by the National Republican Redistricting Trust (Via Instagram. Redacted by ProPublica.)

The NRRT’s executive director is Adam Kincaid, a former Republican National Committee strategist. Kincaid had become the go-to conservative voice on redistricting within the party. Soon, he would take a hands-on role in drawing Texas’ congressional map. Kincaid declined to comment on his work in Texas “due to ongoing litigation.”

On a party podcast, Kincaid had pushed Republicans to counter what he described as the Democrat’s plan to “sue till it’s blue.” The NRRT distributed talking points asserting that “Democrats are sitting back counting the cash they plan to use on their trial lawyers to fund their strategy of endless litigation,” according to a document secured by the watchdog American Oversight.

In the podcast, Kincaid said the NRRT, which does not have to disclose its donors, would send resources to states facing challenges. Separately, Republican Gov. Greg Abbott of Texas promoted a super PAC that raised money to hire redistricting experts and legal counsel and brought in $500,000 in a single day.

Texas had been mired in voting rights litigation for almost a decade. Groups representing Latino and Black voters had sued after the 2010 census too, making similar allegations to today. Then, a district court judicial panel rejected the state’s map, ruling that large portions of it were unconstitutional racial gerrymanders and ordering maps to be redrawn. Republicans tried to assert legislative privilege over internal emails, but judges rejected the arguments and ordered the documents released.

Emails exposed GOP staffers plotting about how to draw maps to maximize Republican influence in Latino areas, or as one staffer put it: creating “Optimal Hispanic Republican Voting Strength.”

A state lawyer dismissed their plan in Spanish, “No Bueno,” slang for “No Good.” He warned them not to create a paper trail. The court found discriminatory intent.

The state appealed. Ultimately, the Supreme Court in 2018 reversed the lower court and sided with the Republicans in a 5-4 ruling.

Having been embarrassed after 2010, GOP leaders promised transparency this time around. Instead, they took the opposite tack, said Glenn Smith, an author and longtime Houston reporter and Democratic consultant: “Hide as much as possible.”

A leader in the buildup to the 2021 redistricting was Republican state Rep. Phil King, a lawyer who has championed religious liberty and Second Amendment issues. King chaired the House Redistricting Committee and set up a tutorial for members in 2019 featuring Ryan Bangert, a hardliner who was appointed by Republican Attorney General Ken Paxton. It was obvious, said one attendee, that King was “preemptively trying to make sure members covered their tracks.” King’s office did not respond to repeated requests for comment.

In his presentation, Bangert raised what he called “caution flags,” according to a tape of the meeting. While judges had differing interpretations of privilege, it was generally waived if information was shared with outside third parties like lobbyists. “Be very careful,” he said, of tweets or barroom conversations. Bangert now advises a conservative legal group. His spokesperson said that he had no further redistricting involvement.

King was the ideal person to lead the fight. He had star billing in 2019 at two sessions of the American Legislative Exchange Council, a conservative group of state lawmakers, lobbyists and executives that works to draft and spread conservative legislation. King, a national board member of the council, spoke on a panel that delivered a primer on redistricting challenges. Drawing maps favorable to the GOP while preserving minority rights was tricky, party leaders said at the sessions.

GOP strategist Cleta Mitchell, who later took a lead role in Trump’s 2020 election denial effort, worked with the council’s redistricting committee. She moderated King’s panel at the annual convention, telling the audience sarcastically that it would teach them “how to gerrymander.” Slate, which posted leaked audio, said the speakers encouraged “trashing potential evidence.”

The legislators did not want to rely solely on their own discretion, however. In May 2019, a Republican House member from Fort Worth used a routine housekeeping bill to mount a sweeping assault on open records. He slipped a provision into the bill that closed off public access to internal redistricting records. It passed before transparency advocates noticed.

The bill shielded lawmakers’ communications with staff, even interns, as well as outside contractors who might normally be considered third parties. Other legislatures have adopted similar measures. Florida has exempted redistricting documents from its Sunshine Law since 1993, and North Carolina’s Republican-led Legislature recently buried a similar exemption in its 625-page budget bill. The Democratic-led Legislature in Washington is under a court challenge for using a loophole in the state constitution to exclude lawmakers from open records requests related to redistricting.

In addition to passing the law, Texas Republicans assembled legal heavy hitters who, in turn, hired subcontractors who could work behind attorney-client privilege. The House paid more than $1 million to Butler Snow LLP, which hired a Virginia-based demographer to draw maps for the state House of Representatives. (The legal contracts were obtained by American Oversight through an open records request sent before the law was passed.)

Then, for the national congressional seats, 22 GOP members of the Texas Legislature hired Chris Gober, former general counsel for the state Republican Party. It’s not unusual for states or members to retain outside counsel. But what Gober then did was hire the NRRT, an outside party, paying the group a mere $5,000. That secured Kincaid’s map-drawing services, according to Gober’s deposition. He said Kincaid “had the mouse” on the computer drawing congressional maps.

Gober said he is not proficient with redistricting software and hires subcontractors to work under his direction. “That arrangement — and our assertion of attorney-client privilege — is not any different than the other circumstances where our firm hires subcontractors,” he said.

In the Texas case, NRRT legal counsel Jason Torchinsky argued that Kincaid should not have to give a deposition because it would “deter full and honest discussions” between NRRT and partners. After a year of wrangling, a judge ordered Kincaid to answer questions and a deposition is scheduled for early November.

Torchinsky himself has become a key figure in helping Republicans with redistricting. In 2022, he helped devise a new congressional map for the office of Gov. Ron DeSantis. The governor’s plan, which faces a federal lawsuit, reduced the voting power of Black residents. A state judge has since ordered the map redrawn. Torchinsky did not respond to repeated requests for comment.

Working From Inside

While Kincaid focused on drawing a map for the state’s congressional seats, GOP map-drawer Adam Foltz arrived from Wisconsin in 2021 to assist the local effort. By then, Republican state Rep. Todd Hunter had succeeded King as House redistricting chairman. Hunter had a checkered history in redistricting; judges in 2011 had criticized him for drawing maps that undermined Latinos, according to The Texas Tribune. Hunter gave Foltz a $120,000-a-year state job, the Tribune reported, and he enjoyed such high-level access that Democrats noticed his car parked in a special driveway for members. Foltz, whose work also fell under the umbrella of privilege, drew a state salary even after map drawing concluded, and he recently got a $6,000 cost-of-living increase.

Foltz had a similar arrangement in Wisconsin, a state lawyers often cite as a poster child for improper government secrecy and prolonged litigation in its 2010 redistricting cycle. Working from a private law firm, Foltz drew maps that later were thrown out, according to local press reports. Foltz remained in a $50,000-a-year state job during litigation. He later gave testimony that a judicial panel called “almost laughable.” Foltz declined to comment, citing ongoing litigation. Hunter’s office did not respond.

Foltz’s deposition in the Texas case remains sealed by order of the court. He is still asserting legislative privilege to try to prevent giving access to his mapping work to the Justice Department, which joined the plaintiffs who are challenging the maps.

Consequences

The fight carried over to the Texas Senate as well. Republican-led redistricting helped end the Senate tenure of Beverly Powell, a Democrat. She said she knew she had a target on her back from the time she was elected, unseating a Tea Party Republican in 2018.

Powell’s Senate District 10 in Tarrant County, an unpredictable swing district in recent years, was one of several seats Republicans wanted to reclaim to consolidate their power.

She expected a bad result when the Republican chair of the Senate Redistricting Committee, Joan Huffman, secluded herself to draw a new Senate map. When Powell was finally called in to view it, what she saw outraged her. Her district’s minority communities had been split up, diluting their voting strength, while largely white rural counties had been added.

“I know exactly what you are trying to do,” Powell said she told Huffman. She dashed off a warning to other senators that Huffman’s plan was discriminatory.

Senate District 10 Was Transformed Dramatically After Redistricting in 2021

The district previously represented racially diverse communities near Fort Worth, but it now encompasses portions of sprawling rural counties with mostly white constituents.

Source: Redistricting Data Hub via Capitol Data Portal. (Lucas Waldron/ProPublica)

Huffman insisted her map was “race-blind.” Her plan sailed through, with a notable dissent from former redistricting chair Sen. Kel Seliger, a Republican then feuding with some fellow Republicans. The Amarillo senator later testified that Huffman’s map “violated the Voting Rights Act.”

Powell tried unsuccessfully to convince a court to delay the 2022 primary election. She dropped out of the race for reelection, and the powerful House veteran King took her seat.

Powell’s complaint about the district is now part of LULAC v. Abbott, the redistricting case now awaiting trial. Her case stands out because “she has much more information about what happened than any of the rest of us do,” said Nina Perales, vice president of litigation at the Mexican American Legal Defense and Educational Fund.

Republicans have asserted privilege in the Senate mapping fight as well. Overall for all the mapping, their claims cover about two-thirds of the documents the Justice Department wants, including drafts of maps, emails and calendars that reflect protected “thoughts, opinions and mental impressions,” documents show. The legislature has disputed that estimate.

The case stalled for a year while the 5th Circuit weighed privilege in another Texas case. Written by Trump appointee Judge Don R. Willett, its decision defended legislative privilege “even when constitutional rights are at stake.” The 8th Circuit also ruled in June in a North Dakota redistricting case that privilege “protects the functioning of the legislature.”

Judges in the redistricting case are weighing how these decisions impact 22 outstanding motions for documents and depositions.

For her part, Bonilla, the Fort Worth small business owner, says she’s given up hope. “The system has failed,” she said.

Josh Kaplan contributed reporting. Alex Mierjeski and Gabriel Sandoval contributed research.

This content originally appeared on Articles and Investigations - ProPublica and was authored by by Marilyn W. Thompson.