TEXAS REDISTRICTING

With the Supreme Court yet to rule, questions inevitably have turned to whether there is any way it will be possible to keep to an April 3 primary.

Senator John Cornyn and many election law lawyers think that chance is becoming increasingly remote.  In fact, many observers aren’t even certain when the primary could be held if it needs to be moved.

Consider the logistical challenges.

Even if the Supreme Court rules this week or early next week (by no means certain), the San Antonio court will need time to respond to the Supreme Court’s rulings - unless, of course, the Supreme Court simply orders one or the other maps into effect - but that seems unlikely based on last week’s oral argument.

Presumably, before ruling and producing maps, the San Antonio court would want to get briefing and hear argument, especially if it has to consider claims and issues that were tried in the D.C. case.

However, the parties are in Washington for trial in the preclearance case through January 26, meaning that the court likely couldn’t hold a hearing  until January 30 at the very earliest. That already bumps up against the February 1 filing deadline - and any hearing in San Antonio well could be later.

If the court somehow manages to get briefing, hold a hearing, and get out a ruling by the week of February 6-10, it might be possible to keep things more or less on track by adjusting the front-end deadlines a little by, e.g., shortening (as county associations have suggested) the requirement that military ballots be sent out 45 days before election day.

But bear in mind that the filing period still would need to be reopened for at least a few days, ballot draws would have to occur, and ballots would have to be printed (a two to three week process).  That makes for a tight schedule, even if a court order comes in from the San Antonio court before mid-February.   

It also might be possible to push the date of the primary back a couple of weeks, perhaps in combo with a shortening of the military ballot period.

But even a modest tinkering of the primary date would put early voting on Good Friday (April 6) and possibly Easter Sunday (April 8) as well.  That would cause a scheduling challenge since in many areas early voting polling places are at churches, which might not be available because of Holy Week observances. Not perhaps an insurmountable challenge, but a consideration nonetheless and another headache.

Push the date any later than mid-April, and you run into not only problems with getting everything done in time for the Democratic and Republican state conventions in early June but into conflicts with the May municipal election calendar.

Early voting for the May municipal elections starts April 30 and runs though May 8.  For several days before that voting machines will be unavailable as they are programmed and tested for the municipal elections.  Municipal elections then are May 12.  Early voting for municipal runoffs then takes place June 4-12, and election day for municipal runoffs is Saturday, June 16.  If the primary is scheduled any time around those dates, there will need to be time to reprogram and test machines for the primary.

Things don’t look better by waiting for the D.C. court to rule.  Although the evidentiary phase of trial ends on January 26, closing arguments aren’t until a week later on February 3.  The court might rule quickly but it’s hard to see it ruling before February 8. It very well could take longer. And unless the D.C. court preclears the maps in their entirety, the San Antonio then would need to digest the D.C. court’s ruling and incorporate it into whatever maps it draws. 

Another option is splitting the primary into two parts - with statewide and countywide races on April 3 and other races later - but that would essentially double the cost of the primary for election administrators. County election officials of both parties have made pretty clear that they don’t think that’s a financial burden they should bear. By some estimates, Tarrant County alone could be out an extra $700,000 if the primary is split. Other counties such as cash-strapped Maverick County have said they would have to lay off employees to come up with the money needed if the state doesn’t bear the costs. State Senator Kel Seliger (R-Amarillo), in fact, has called it “the mother of all unfunded mandates.”

Splitting the primary also would require the parties to adopt rule changes to address how national delegates are selected since the rules provide that delegates be selected by state senate district (for Democrats) and congressional district (for Republicans).  The question, of course, is what lines do you use?  That’s not so much an issue for Democrats, where Barack Obama faces no serious opposition, but it yet could be an issue for Republicans.

Moving the date of the state conventions is equally unpalatable to the two major political parties. The cost of moving the conventions could be hundreds of thousands of dollars, assuming space could even be found for large conventions at the last minute (the Republican convention has around 18,000 delegates and alternates and the Democratic convention attracts about 14,000 people). 

In short, none of the options looks very good.