TEXAS REDISTRICTING & ELECTION LAW

Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers. Have questions, comments, suggestions, additional content, or a redistricting joke (or two)? Feel free to contact me: Michael Li, michael.li@mlilaw.com, 202.681.0641.
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Texas Attorney General Greg Abbott issued the following press release this afternoon announcing that he will seek an emergency stay from the U.S. Supreme Court blocking implementation of the court-drawn interim redistricting maps.

Attorney General Abbott to File Emergency Stay with U.S. Supreme Court Challenging Redistricting Maps Drawn by Federal Judges

AUSTIN
—Texas Attorney General Greg Abbott will file an emergency stay application with the U.S. Supreme Court on Monday to halt the implementation of legally flawed redistricting maps drawn by a federal panel in San Antonio.


At issue is whether the interim maps imposed by a three-judge redistricting panel violate the U.S. Constitution and federal law, and exceeds the proper role of the judiciary. The State of Texas alleges the panel improperly rejected the will of the elected legislature and redrew the State’s House and Senate districts without regard to any established legal or constitutional principles.

Attorney General Greg Abbott explained that a stay of the election process is needed because “elections should not proceed based on legally flawed maps that are likely to be overturned on further review.”

Because the legally flawed maps could create confusion for Texans who wish to become candidates when the filing period opens Monday, the State of Texas is pushing quickly to restore clarity to the process. An expeditious decision is necessary so candidates will not needlessly file for office based on boundaries drawn by the interim maps that are likely to be overturned upon further legal review.

Why should the State of Texas appeal this case to the United States Supreme Court? Why should the State ask for a stay of the redistricting plan proposed by two of the three judges at the lower court hearing? Why does the State believe it can and should win at the U.S. Supreme Court?

So far, only one appellate judge has considered the redistricting plan passed by the Legislature – that is Judge Jerry Smith of the 5th Circuit Court of Appeals. He dissented from the interim Texas House of Representatives redistricting plan proposed by the two trial court judges, and provided a detailed analysis as to why the interim House plan was a stark departure from the law. The italics in the following paragraphs are words written by Judge Smith that graphically detail why justice demands the interim House redistricting plan be overturned immediately.

Judge Smith agrees that the interim Texas House of Representatives map proposed by two judges in San Antonio is legally flawed. In particular, he states that the two judge majority opinion “produced a runaway plan that imposes an extreme redistricting scheme for the Texas House of Representatives, untethered to the applicable caselaw.” Judge Smith goes on to say that imposing the majority plan “is grave error at the preliminary, interim stage of the redistricting process.” Judge Smith concludes that the majority’s“plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal, practical, or fair.” 

Judge Smith’s opinion is filled with points that support the conclusion that the majority’s decision is legally unjustifiable and should be overturned on appeal. Following are just a few of those points:

“[T]he federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law.” The majority opinion violated that tenet.

“[T]he interim phase is not the time for this court to impose the radical alterations in the Texas political landscape that the majority has now mandated.”

“[T]he majority ventures into other areas of the State and, as though sitting as a mini-legislature, engrafts its policy preferences statewide despite the fact that no such extreme modifications are required by the case law or by the facts that are before this court at this early stage before preclearance and remedial hearings.”

* In emphasizing how the majority consistently ignores the law, Judge Smith points out that “the majority’s general approach of maximizing the drawing of minority opportunity districts that satisfy the Gingles preconditions was specifically rejected in Johnson v. De Grandy.”

* The majority “engages in unconstitutional racial gerrymandering without section 2 as an even colorable legal justification.”

“There is no legal requirement to create coalition districts (and certainly not one like this), even for the Legislature, and it is surely not appropriate for a court that is fashioning only interim relief.” 

Additionally, General Abbott announced a significant addition to the appellate team that will be representing Texas at the U.S. Supreme Court. Paul Clement - one of the nation’s foremost appellate lawyers and former Solicitor General of the United States - is assisting the State of Texas with the redistricting challenge. Mr. Clement served as the Solicitor General of the United States from June 2005 until June 2008. In that capacity, he was the chief appellate lawyer for the United States and had primary responsibility for appellate arguments to the U.S. Supreme Court. He has argued over 50 cases before the U.S. Supreme Court and has argued more cases since 2000 than any other advocate. A top graduate of Harvard Law School and Supreme Court editor of the Harvard Law Review, Clement currently is a partner at Bancroft PLLC.

Mr. Clement has an established history of working with Texas on appellate matters. He joined Attorney General Abbott in successfully arguing before the U.S. Supreme Court to defend the Ten Commandments monument on the Texas Capitol Grounds. He is currently representing Texas and 25 other states in their legal challenge to ObamaCare that is currently pending in the U.S. Supreme Court.