Texas House Speaker Joe Straus and State Representative Burt Solomons said on Monday they would ask Attorney General Greg Abbott to seek a stay in the U.S. Supreme Court if the court-drawn interim maps are not changed to adhere more closely to the maps passed by the Legislature.
So how easy would that be?
The answer: It’s a pretty darn high hurdle.
For starters, if the state decided to seek a stay, it would first need to ask the three-judge panel for a stay. This is because Supreme Court Rule 23 says that, “[e]xcept in the most extraordinary circumstances, an application for stay [at the Supreme Court] will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”
If the panel denied relief (which it probably would since it will have written the order being appealed), the state then could file an application with justice responsible for the United States Court of Appeals for the Fifth Circuit- in this case, Justice Antonin Scalia.
Justice Scalia would have the power to refer the application to the entire Supreme Court or decide it himself, although the late Justice Rehnquist said in another Voting Rights Act case that a “single Justice will grant a stay only in extraordinary circumstances.” See Bartlett v. Stephenson, 535 U.S. 1301 (2002).
In either event, the state would need to show that there is a ‘fair prospect’ that a majority of the court would conclude on review that decision below was erroneous and, perhaps most critically, that ‘irreparable’ harm would result from denial of the stay. In a close case, case law says the court also can consider the ‘balance of the equities.’
In redistricting cases, it can be hard for parties seeking a stay to show the high level of required harm, especially with the obvious fix being as simple holding the next election under a fixed map or, if necessary, having special elections (something that a court has ordered in Texas on more than one occasion).
The experience of Hispanic and Democratic groups in the 2004 mid-decade ‘DeLay redistricting,’ in fact, is probably instructive. There, the Supreme Court refused to block use of the DeLay map in the 2004 elections, despite arguments from plaintiffs that irreparable harm would result if Anglo Democratic incumbents, who the state freely admitted were being targeted under the map, were allowed to be defeated. And, there, unlike here, the state had a legally enforceable map it could have continued using for at least one more election cycle.
But back to the process …
Stay requests are decided on papers only, without oral argument.
If a stay is not denied outright, it is customary (but not required) for the court to ask the other side for a response.
If the matter is referred to the entire court, five justices would need to vote in favor of a stay.
Likewise, if Justice Scalia alone decided the application and granted a stay, five justices could elect to vacate the stay on application from one of the redistricting plaintiffs.
If Justice Scalia were to deny the stay without referring the matter to the entire court, then Supreme Court rules permit the state to go try its luck with another justice, but the rule also states that ‘a renewed application is not favored.’
While a request for stay is under consideration, the court can grant a temporary stay - but this is discretionary with the court.
Finally, a note on timing: For those who always imagine the Supreme Court moving slowly, the whole process can be remarkably quick. When groups asked the Supreme Court to stay the sale of Chrysler to Fiat, Justice Ginsburg granted a temporary stay on December 6 and referred the matter to the whole court, which denied the stay request on December 9.