The State of Texas’ efforts to block implementation of the interim maps in many ways puts the parties in the extact opposite position they were in back in 2004.
Back then, it was minority groups and Democrats who sought unsuccessfully to block effectiveness of the mid-decade ‘DeLay map’ in order to give the Supreme Court time to consider their appeal.
Responding to arguments in 2004 that going forward with elections under the DeLay map would result in ‘irreparable’ harm, Texas Attorney General Greg Abbott was dismissive of many of the same arguments the state likely will try to make in 2011.
In 2004, redistricting plaintiffs argued that little harm would result from allowing the existing, legally enforceable map to be used for one more cycle. On the other hand, redistricting plaintiffs told the Supreme Court that if the court allowed elections under the disputed map and lated “reverse[d] the judgment below, the rights of Texas voters will have been illegally abridged, and their Representatives will have been thrown out of office solely based on party.”
Abbott sharply disagreed in his 2004 response:
Applicants [minority groups and Democrats] suggest that the loss of incumbency advantage would constitute irreparable harm …. Applicants argue … that the incumbent, once beaten in an election, would be unable to win again even if district lines are restored later. That claimed anti-democratic advantage in an election is hardly sufficient to justify extraordinary relief.
Today, Abbott sounds a whole lot more like the 2004 plaintiffs when he argues:
[M]ore troubling is the injury that will result from allowing the 2012 Texas House elections to go forward on an unlawfully composed redistricting plan. Once done, the harm caused to the State and its citizens cannot be undone when if the elections are later invalidated, because the results of the election would be irreversible.
So how might this play out this time?
In key ways, the state’s hand seems weaker than in 2004.
Although, then as now, a core of the state’s argument is the need to respect “the will of the people of Texas,” as expressed in the Legislature’s maps, there is at least one big distinction that many observers point to - in 2004, the DeLay map had been precleared by the Justice Department and upheld on the merits by a three-judge panel in Sherman.
By contrast, here, there is not yet a legally enforceable map. The D.C. court declined to preclear this year’s maps (rejecting the state’s proposed retrogression standard and holding that a trial would be needed). The San Antonio court, likewise, has not ruled on the maps (something the parties all agree that it is prohibited from doing because the maps have not been precleared).
In any event, one thing that’s clear is that the start of candidate filing and active campaigning will narrow the likelihood of a stay in favor of the state. In fact, back in 2004, Abbott argued precisely that point.
Since the District Court’s January 6, 2004 decision, candidates have begun filing announcing their candidacies under the new district map. So, too, some candidates have withdrawn from other positions so that they can run under the new map. And candidates across the State have been campaigning in their new districts.
The history of the 2004 efforts suggests the state may have a hard road to climb. The 2004 plaintiffs filed their request for a stay on January 6- submitting the request as required under Supreme Court rules to Justice Scalia. Justice Scalia did not decide the matter on his own, or issue a temporary stay, but instead referred the matter to the entire court. After soliciting briefs from the parties, the entire court rejected the request in a summary order on January 16.
Here are the parties main 2004 briefs and the Supreme Court’s order denying the stay application:
2004 platintiffs’ stay request:
State of Texas response to stay request:
Supreme Court order: