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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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 Statefailure   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 districtsThird, 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 shoulclarify 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)

They also take pains to point out how minor some of the changes actually are.

For example, they note that in the state senate map the only change was to restore State Senator Wendy Davis’ district (SD-10) to its 2001 benchmark configuration and make a few minor adjustments to adjoining districts to take into account population changes.

Likewise, on the state house map,  the redistricting plaintiffs argue many of the supposed defects that the state argues are in the map merely result from maintaining the status quo, pointing out, for example:

[T]he benchmark HD 149 in Harris County is 77% minority.  The State has never claimed that any district in the benchmark plan, which was drawn by the Texas Legislative Redistricting Board in 2001, is a racial gerrymander.  Nevertheless, when the district court chose to maintain HD 149 in the same geographic area as the benchmark, with a resulting 75% minority population, the State claims that the district is ‘race-based’ without ‘legal or factual justification.’

Where new coalition districts occur on the state house map, they say those districts arise primarily from drawing compact districts (in areas where the state had districts situated) and equalizing population.  That’s just what happens, they say, given Texas’ contemporary urban population patterns.

Redistricting plaintiffs say the same thing happened on the congressional map with the new CD-33- the only congressional district that they say the state’s briefs really complain about.

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, like striking down a key part of iconic civil rights legislation, 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.  I’ll also post the transcript here.