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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[Updated 12/12/11]

What does the Supreme Court’s order do?

In the simplest of terms, two things.

First, the order halted further use of the court-drawn interim state house, state senate, and congressional maps, at least for now.  

This means that until further notice, candidates don’t have offices to file for.

Second, the Supreme Court set an exceptionally expedited briefing schedule in the state’s appeals with briefs from both sides due on December 21, reply briefs on January 3, and oral argument set for January 9.

What about the filing deadline?

That remains December 15 for now, though as noted above, there are now no legislative or congressional districts to file for.

To answer a number of questions about why this order isn’t stayed as well- the Supreme Court’s order only stays the three orders adopting the interim maps (it mentions them specifically).  The adjustment of the election dates was in a separate order, was not appealed, and is not stayed.

Texas Attorney General Greg Abbott said over the weekend that he will ask the San Antonio court to clarify that all deadlines relating to state house, senate, and congressional seats have been suspended.  

The San Antonio court has scheduled a status conference for 10 a.m. on Tuesday, December 13, to discuss the election schedule.

What about the March primary?

The March 6 primary also remains in place for now, but adjustments are virtually certain- even if the Supreme Court rules quickly after the January 9 oral argument.  

At this point, it’s very unlikely that the primaries for state house, senate, and congressional races could be kept on March 6 just because of the logistics involved. 

The ballot order draw in each county is scheduled for December 20 and ballots will be printed shortly after that (the process takes about two weeks) so that military mail ballots can go out by mid-January, as required under federal law.

The process of redrawing precinct boundaries (and the need to have those boundaries precleared) further complicates matters and makes it unlikely that the March date can maintained if state house, senate, and congressional races are added back into the mix. There simply won’t be enough time to redraw the precincts and have them in place.

In other words, it seems certain that either the entire primary or primary elections for state house, senate, and congressional districts will need to be moved.

The state has suggested having state house, senate, and congressional primaries on May 22, with the primary for all other races remaining on March 6.  However, the Supreme Court has not addressed the issue yet or asked the San Antonio court to do so.  However, the San Antonio court, on its own initiative, has scheduled a status conference for Tuesday, December 13, at 10 a.m. to discuss the election schedule, including the filing deadline.

We should know more in the next few days.

Why can’t the state just use the current maps for now (i.e. the ones used in 2010)? 

Those districts are now unbalanced in terms of population and using them would violate the one-person/one vote principle of the Constitution.  In addition, on the congressional side, Texas gained four new seats after the 2010 census which need to be accounted for.

So, for now, Texas has no legally enforceable maps.

The court’s order talks about ‘probable jurisdiction,’ what is that?

That’s the Supreme Court’s way of saying it has decided to get briefs and hear oral argument in a direct appeal from a three-judge district court.

Appeals from a decision of a three-judge district court are a little different than your normal appeal to the Supreme Court.  

In the normal case, the party seeking to appeal has to file a ‘petition for certiorari’ with the court asking the court to take the case.  If four justices agree, the court will ‘grant cert’ and consider the appeal.

In a direct appeal, a party does not have to ask permission first.

However, the Supreme Court still can decide not to hear an appeal or can decide to affirm the appeal summarily if it decides that the appeal does not present ‘substantial’ questions.

When a court notes ‘probable jurisdiction’ it is saying it believes the questions likely will be substantial enough and that it wants to get briefs and hear further argument.  

What does the ruling mean about the Supreme Court’s view of the case?

There’s likely to be a lot of discussion about this in the days to come.

But, at a minimum, the decision to grant a stay was without dissent from any of the justices and granting a stay is a so-called ‘extraordinary remedy,’ so what can be said that the court thinks there are issues that are significant enough to merit further argument and resolution before Texas holds elections.  

A decision to grant a stay, however, requires that the court perform a balancing test.  Factors considered by the court include the strength of a party’s case, the possible harm to the party, and the possible harm to other parties.  Since the court did not give reasons for its stay, it’s hard to know how the court weighed those factors or which was more important in its decision.  

In other words, some of the justices may have felt the state has a slamdunk case, while others may have had questions about the state’s case but thought that the harm to the state, if the state was right, was significant enough to merit a pause to let the court could consider the matter in more detail.  Or the justices could be in agreement on their thinking about a stay and merits of the case.  We’ll know more after the January 9 oral argument or possibly before if the court issues further orders before the argument.

When will the Supreme Court rule?

That’s not clear.  Oral argument is set for January 9 and, given the expedited schedule, it seems the Supreme Court is ready to move the case forward at a quick pace.  But it’s hard to predict more than that.

What happens in the D.C. preclearance case?

The Supreme Court’s order does not technically address the preclearance case, which is preceding on its own course (in fact, a status conference is set for the afternoon of December 12).  However, the ruling likely will impact arguments about what benchmarks should be used at trial in that case, and it seems likely that the state may now try to renew its push for an early trial date.  

What about party conventions?

It’s also unclear what happens here.

If the March primary remains in place, presumably the Democratic and Republican parties’ precinct conventions would remain the night of March 6**, with delegates being elected that night to go on to senate district or county conventions on March 24.

But it’s not clear what senate district lines would be used for those counties that hold senate district conventions.  Party executive committees likely will need to adopt temporary rules for this and also possibly also for the way national delegates are selected.  

As an aside, could the Supreme Court’s ruling have an impact on the race for the Republican presidential nomination?  Yes.  But so also could moving the primary to May when either the race will have been decided already or it’s possible the electorate could be different.

** A new law allows a county party to set the date for precinct conventions as late as March 11.  If a county party wanted to set a later date, it would need to do so by December 20.

Will counties have to redraw precincts twice?

Yes, it looks like it.  The new state board of education map and various county commission maps split a significant number of precincts, so the old precincts no longer can be used. However, without state house, senate, and congressional maps, it’s impossible to redraw them just once.  

If the March primaries go forward for other races, the precincts will need to be redrawn once for the March primary and then again after we get definitive legislative and congressional maps.  

What about candidates who have resigned from office under ‘resign to run’ laws to run for the Texas Legislature or Congress- can they rescind their resignation or are they out of luck?

A good question.

What if district lines change again, will candidates who have filed for office in a district they no longer want to run in be able to get their money back?

Another good question.  Glad not to be the one to have to figure that out.

Do candidates who have filed for a district that may or may not exist still have to make campaign finance filings with the Federal Election Commission or Texas Ethnics Commission?

Yes, the Supreme Court’s order did not effect FEC or TEC deadlines.

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