The start of a “January to remember” kicks off Monday afternoon at 1 p.m. (ET) with arguments in the Supreme Court about the interim legislative and congressional maps drawn by the San Antonio panel.
Here’s a preview of the case:
What will the Supreme Court decide?
There are three interlinked core issues:
The first, and most basic issue, is whether the San Antonio panel abused its discretion in drawing interim maps that did not hew closely enough to the maps adopted by the Texas Legislature.
Then, if the Supreme Court concludes that was the case, the court will have to explain to the San Antonio panel what it needs to do to fix the maps – or how it should draw new ones.
Related to that, the Supreme Court will need to decide whether there is enough time to fix any problems that it finds in the interim maps or whether it should just order the elections to go forward on the state’s maps (as the state argues) or the court-drawn interim maps.
Mixed in with those more pedestrian issues is the lurking and potentially explosive issue of whether the preclearance process under section 5 continues to be constitutionally viable nearly 50 years after enactment of the Voting Rights Act.
When will the Supreme Court rule? How likely is it that there could be further changes to the election schedule?
That’s not clear and may not be clear even after Monday’s oral argument.
But the Supreme Court seems to understand the time sensitive nature of the task. It did, after all, set the case on a very fast briefing and argument schedule, even ordering the filing of simultaneous opening briefs (something that hasn’t happened since Bush v. Gore in 2000). The parties’ briefs also have stressed how interconnected the Texas election process is.
That said, the timeframe is about as tight as could be for keeping to an April 3 primary.
If the court doesn’t rule within a week to 10 days, many observers think that some additional changes to the Texas election schedule could be needed. Right now, candidate filing is scheduled to close on February 1 and the printing of ballots must begin shortly after that to meet deadlines for sending out military ballots. A host of other tight deadlines fall in place after that.
Needless to say, there will be a lot of lawyers checking emails on their computers and phones during the preclearance trial.
What’s the State of Texas’ argument for deference to its maps? What does Texas want the Supreme Court to do?
The state rests its legal argument on a 1982 Supreme Court case, Upham v. Seamon – also involving Texas – which held that the three-judge court in that case erred when it drew maps that changed districts other than those that DOJ had objected to as part of the preclearance process.
According to the state, “in the absence of any finding that some aspect of the challenged apportionment plan ‘offended either the Constitution or the Voting Rights Act.’ the district court ‘was not free, and certainly was not required, to disregard the political program of the Texas State Legislature.’” (quotations from Upham).
In this case, the state argues that its maps are entitled to even more deference because the preclearance process is still ongoing and the D.C. court has yet to make a definitive ruling on the state’s plans. Ignoring the state’s maps, Texas argues, punishes the state for delays in the preclearance process not within its control (though the plaintiffs and DOJ vocally disagree with the state’s contention that it bears no responsibility for the delays).
The state argues that any changes made to the state’s map should have been made only based on “preliminary likelihood-of-success rulings” that would identify and address constitutional and statutory defects in the maps (even if the Voting Rights Act bars the San Antonio from issuing a final ruling until completion of the preclearance process).
Instead, Texas says Judge Garcia and Judge Rodriguez got it wrong by starting from “scratch” without making any kind of ruling about the state’s maps.
As for the maps themselves, Texas argues that time constraints now make it very difficult to go through another round of map drawing and keep to a tight election schedule and, therefore, it asks the Supreme Court to order use of the state’s maps on an interim basis for the 2012 election.
Alternatively, it asks the court to provide guidance in four areas where it says the San Antonio court erred:
First, the Court should reiterate that nothing in the VRA requires proportional representation on the basis of race, and that a State’s failure to maximize the voting strength of minority groups does not violate the VRA. Second, the Court should hold that nothing in the VRA requires a State to draw ”coalition districts,” in which multiple minority groups are a combined majority of the population. The district court created a number of coalition districts in its interim orders, even though it was plainly permissible for the Texas Legislature to choose not to create those districts. Third, the Court should make clear that the district court may not depart from traditional districting principles, such as the Texas “county line rule,” unless that departure is the only way to address an actual or likely violation of law. Fourth, the Court should clarify that the district court cannot seek to equalize population among state legislative districts unless the population deviations in the legislatively enacted map violate the law.___
What’s the counterargument of redistricting plaintiffs (and DOJ)?
The position of the redistricting plaintiffs and the Justice Department is pretty straightforward: Section 5 of the Voting Rights Act says you can’t use an unprecleared voting change, and Texas’ maps haven’t been precleared. Period. End stop.
According to the DOJ and intervenors, using the state’s maps – or even according them substantial deference – would upset the statutory structure of section 5 and encourage states to go slow.
That’s exactly what the intervenors argue what happened here, with the Texas Legislature delaying consideration of redistricting until the end of the legislative session. Then Attorney General Greg Abbott chose to file suit in D.C. district court, rather than seek administrative review from DOJ, and pursued what the parties have called an ‘inexplicable’ litigation strategy responsible for numerous delays (though, again, the parties dispute who is to blame for those delays).
As for Upham, redistricting plaintiffs say that case is different because there the state had a preclearance decision in hand that found certain districts problematic but made no objection to others.
This case, they say, is far different, with the D.C. court having ordered a trial in the preclearance case finding that there were “genuine issues” about whether the state acted with discriminatory intent in drawing the maps.
The redistricting plaintiffs also take issue with the state’s contention that the San Antonio court’s maps constitute ‘runaway’ plans, arguing that the San Antonio court’s order shows that it exercised a “restrained approach.” That approach had the court:
(1) start from Texas’s last precleared map; (2) incorporate the new districts and correct population imbalances to comply with one-person, one-vote principles; (3) preserve benchmark minority opportunity districts so as not to violate Section 5; (4) minimize split voting tabulation districts (‘VTDs’) to allow for quick implementation; and (5) ‘utilize portions of the enacted map where it could do so.’(Joint Travis Co., Davis et al. reply brief)
As far as a remedy, the redistricting plaintiffs ask that the court-drawn interim maps be adopted in light of scheduling issues, noting that even in Upham the Supreme Court held that “[a]though the District Court erred, it does not necessarily follow that its plan should not serve as an interim plan governing the forthcoming election” in light of scheduling exigencies. (In Upham the court was drawing a permanent remedial map rather than an interim map.)
Is it possible the Supreme Court will use the interim map appeal to strike down section 5 of the Voting Rights Act entirely?
Most observers feel that’s unlikely. For starters, the Voting Rights Act itself requires that claims about section 5 come up through D.C. federal district court. 42 U.S.C. § 1973l.
What observers regard as more possible is that the court could end up striking a balance that would require substantial deference to the state’s maps – or even order that unprecleared maps be used as long as a state is being diligent in going through the preclearance process. That would have the effect of weakening, if not completely neutering, section 5 in the redistricting context but leave it in place.
For its part, Texas has not directly urged the court to strike down section 5, though it has tiptoed right to the line – saying that if a district court is allowed to use a state’s inability to obtain a timely preclearance ruling as a basis for ignoring a state’s policy decisions, then there would be significant constitutional questions.
One additional factor that may weigh against the court getting too involved in section 5 issues is simply timing. Building a consensus on complicated issue simply may not be realistic given the tight election schedule – even if some Justices are inclined to try to do so.
Do we know where the Justices stand?
We should have a much better sense after this afternoon’s argument.
The court granted the stay of the interim maps back on December 9 unanimously or at least without published or noted dissent, so there’s no record of where individual Justices stand.
What’s more, redistricting comes up only once every ten years (well, more often if you are in Texas), and Supreme Court case law on interim maps is pretty sparse – with no cases since 1996 and the state’s key case going back almost three decades.
However, granting a stay is a highly unusual step, and it takes at least five Justices to agree to a stay, so we do know that at least that many thought there was a pretty significant issue that the San Antonio panel may have gotten wrong.
But no one knows whether the court views the issue as a relatively narrow one or whether it believes there are more significant constitutional concerns. Or whether the additional briefing has changed any minds.
To the extent constitutional concerns are implicated, we do know from the NAMUDNO case in 2009 (yet another Texas case) that at least one member of the court, Justice Clarence Thomas, believes that section 5 is unconstitutional and that several other members – Justices Roberts, Scalia, Alito, and Kennedy- have expressed serious concerns about its constitutionality based on the fact that section 5 imposes the burden of going through the preclearance process on some states and not on others and does so premised on whether the states were ‘good’ states or ‘bad’ states in the 1960s and early 1970s.
On the other hand, Justices Breyer and Ginsberg had fewer problems with section 5 that last time the Voting Rights Act was before the Supreme Court, while two other members – Justices Sotomayor and Kagan- are new to the court and have not yet decided a case involving section 5, but are thought to be more sympathetic.
How does what happens in the Supreme Court affect the preclearance case set to go to trial on January 17?
It doesn’t – or shouldn’t. The Supreme Court case involves only the interim maps that the state will use for the 2012 cycle. The preclearance case is about the maps the state will use for the 2014 and later cycles.
How much time does each side get? Who’s doing the arguing?
The Supreme Court has given 30 minutes of argument time to the State of Texas and 30 minutes to redistricting plaintiffs. In addition, Solicitor General Donald Verrilli requested, and has been granted, 10 minutes to argue on behalf of the United States.
The State of Texas will be represented by Paul Clement, former solicitor general under President George W. Bush and now a partner with the litigation boutique of Bancroft, PLLC.
Redistricting plaintiffs will be represented by Jose Garza, lead counsel for the Mexican-American Legislative Caucus.
Is it possible to watch or listen to the oral argument?
Supreme Court arguments are not televised or audio broadcast live, but audio recordings of oral arguments are made available at the end of each week on the Supreme Court’s website: www.supremecourt.gov
Texas redistricting case hits U.S. Supreme Court today
After more than a year of political and legal wrangling, the latest round of Texas redistricting reaches the U.S. Supreme Court today in a case that may help reshape the state’s political landscape for years.
The nine justices have set aside an hour for oral arguments to determine which political maps the state should use for this year’s elections. The court agreed last month to hear an emergency challenge by Texas Republicans to court-drawn maps that had been set for the 2012 election cycle.
At stake are the congressional and legislative boundaries that Texas will use for the next decade.
The case could help determine the balance of power in the House of Representatives in 2013, with Republicans in a stronger position if the court allows Texas to use electoral districts drawn by the GOP-dominated Legislature.
Another issue is when Texas will be allowed to hold its 2012 primaries. Texas Republicans and Democrats recently agreed to move the primaries from March 6 to April 3 in light of the legal logjam, but that assumes the Supreme Court will settle the matter in perhaps a week or so.
Some candidates and consultants fear the court could take as long as a month to decide the issue, which could further push back the primaries.
“Every day that goes by, it becomes harder and harder to conduct an April 3 election,” Tarrant County Elections Administrator Steve Raborn said.
All states set about redrawing their political boundaries every 10 years in light of population changes. The stated goal is to draw fair maps, though the definition of fair depends on whom you ask. Ideally, redistricting should create compact districts that avoid splitting up communities.
In recent decades, Texas’ efforts have prompted multiple trips to the Supreme Court; the most recent case before the current one was in 2006.
Work on the current redistricting efforts stretches back well over a year. Hearings seeking public input were held statewide. Lawmakers and party leaders discussed how they hoped to see the districts drawn.
Things kicked into overdrive in February when the Census Bureau released its 2010 count for Texas. The new population figures showed that the state had grown over the last decade by more than 20 percent, with Hispanics accounting for over two-thirds of that. The boom means that Texas will have 36 seats instead of 32 in the 435-member House next year.
In Austin, the Republican-controlled Legislature proposed new maps of congressional and legislative districts. Democrats and several minority groups decried the plans as diluting the power of minority voters. Lawsuits began to be filed even before Gov. Rick Perry had signed the maps into law.
Because of a history of racial discrimination in voting, Texas is among 16 states required to get federal approval of election changes under the Voting Rights Act. A federal court in Washington, D.C., would not approve the Legislature’s maps. That prompted federal judges in San Antonio to draw temporary maps that were widely seen as favoring Democrats.
The Texas attorney general’s office will try to convince Supreme Court justices today that the state should get to use the maps approved by the Legislature last year because no federal court has rejected them. A ruling in their favor could compromise a key portion of the Voting Rights Act, legal experts say.
“What Texas is trying to do is game the system by saying, ‘Well, we haven’t pre-cleared the plans but let us put them into effect anyway,’” said Nina Perales with the Mexican American Legal Defense and Educational Fund, part of a coalition of parties opposing the state in the suit. Others involved in the legal action include the Texas Democratic Party and state Sen. Wendy Davis and state Rep. Marc Veasey, both Fort Worth Democrats.
Eight other states signed a brief backing Texas, saying a map approved by a state’s elected officials should be given more deference if federal authorities haven’t ruled on its legality.
“Courts may be competent to alter district lines to account for violations of federal law, but they are ill-suited to draw such lines from scratch,” the brief reads.
Until the court decides, candidates statewide are stuck in a holding pattern as they wait to see which maps are approved. Some such as Veasey and Republican Roger Williams have framed their plans to run for Congress based on assumptions that they can run in a district drawn a certain way. If the map turns out differently, their political plans could change.
Election officials say planning for the primary will take weeks after the maps are finalized. New voter registration cards that were supposed to be mailed out this month are on hold. Also, ballots for military and overseas voters need to go out 45 days before the primary under a new federal law.
“Unless those maps come out real quickly, we’ll never make that 45-day deadline,” Raborn said.
None of the justices gets to vote for a member of the state Legislature or congressional delegation, but those nine jurists — or as few as five of them — could well determine the outcome of key races nonetheless.
For instance, if the court says 2012 primaries should proceed under voting districts approved by the Legislature during the summer, a new congressional district stretching from Arlington to Parker County heavily favors a conservative Republican, and central Fort Worth voters who sent Democrat Wendy Davis to the state Senate will be dispersed, stacking the odds against her re-election.
But if the justices say the balloting should proceed under maps drawn by a three-judge federal panel in San Antonio as part of convoluted redistricting litigation, two Fort Worth Democrats — state Rep. Marc Veasey and former City Councilwoman Kathleen Hicks — could be the main contenders in a new North Texas congressional district, and Democrats might have a better chance of wresting other seats from the Republican grip in Austin and Washington for this election cycle.
The Supreme Court could order revisions in one set of maps or the other, or combine elements of both into a hybrid that nobody really loves.
Or course, no one loves the hydra that Texas’ election apparatus has become, either.
And the 70 minutes of arguments scheduled for Monday afternoon won’t immediately make it any more embraceable.
The Supreme Court could take days or weeks to decide whether the arguments of the state’s lawyers or an array of challengers to the Legislature’s maps prevail.
The political ramifications are significant.
The practical considerations are enormous because county election officials are crunched for time to prepare for April 3 primaries.
But the court’s role is to decide a limited legal question: Which “interim” maps should be used for 2012 elections while litigation continues over whether the legislatively drawn districts comply with the Voting Rights Act and the U.S. Constitution?
Lawyers for the state argue that redistricting plans the Legislature adopted for the state House and Senate and Congress should be used this year even though they haven’t received the approval the Voting Rights Act requires.
A group of plaintiffs and the Justice Department say some elements of those plans violate minority voting rights, but the trial for a federal panel in Washington, D.C., to decide those claims won’t start until Jan. 17 and likely won’t be decided until February or later.
The San Antonio panel, which is overseeing separate but related lawsuits, drew interim maps because some voting districts had to be in place for the quickly approaching primaries. But state officials insist that the court’s plans should have looked a lot more like what the Legislature passed.
The plaintiffs — interest groups and individual Democrats including Davis and Veasey — contend that the Republican-dominated Legislature has illegally built GOP power at the expense of racial and ethnic minority voters so the state’s plans can’t be used until their fundamental flaws are corrected.
The Justice Department, which gets 10 minutes to present its views Monday, argues that even though the San Antonio court’s plans aren’t ideal they should be used for now.
Though the Texas attorney general has tried to get the Supreme Court to veer off into ruling on the validity of the Voting Rights Act, the justices should keep their eyes straight ahead.
They should rule quickly and clearly so that candidates can make plans, voters can know who’s running and election officials can proceed with the nuts and bolts of mailing voter cards, printing ballots and otherwise preparing for the primaries.