[This piece will be expanded to incorporate additional thoughts as the morning goes on]
The Supreme Court entered an opinion in the interim map appeal this morning, sending the case back to the San Antonio court for further proceedings.
The opinion is available here. The opinion was issued per curium (i.e. it was unanimous and issued on behalf of the court without a stated author).
The court held that the state’s maps should have been used as the starting point for interim maps but that the San Antonio court could adjust those maps if it found a likelihood of section 2 or other violations as a result of the case tried before it or if the court found a “reasonable probability” of section 5 violations.
Justice Thomas concurred with the result but said that he would have directed use of the state’s maps on an interim basis since his view is that section 5 of the Voting Rights Act is unconstitutional.
Although there was discussion about dates for the Texas primary during oral argument at the Supreme Court, the Supreme Court did not address the issue, instead leaving that question for the San Antonio court.
1. The opinion has hallmarks of a tough fought compromise. It is not entirely clear, for example, what ‘reasonable probability’ means or how it differs from the traditional injunction standard of ‘substantial likelihood of success,’ except that the court went on to say that it meant ‘not insubstantial.’ Some commentators and observers have suggested that is a high standard; other observers think the standard could be somewhat less demanding. Others have no idea what the opinion means. As one prominent civil practitioner said in an email, ”The definition of ‘reasonable probability’ being ‘not insubstantial’ is not really clearing things up for me.”
1a. Because redistricting cases come up only every ten years or so, unfortunately it may be another decade or more before we get Supreme Court clarification on what it meant by ‘reasonable probability.’ That’s one of the challenges of practicing in this area.
1b. As far as ‘reasonable probability,’ some are already pointing to this email.
1c. Lloyd Doggett and ‘reasonable probability.’ My initial reaction is that Lloyd Doggett still comes out pretty good from all this. The D.C. court has already rejected the state’s contention that crossover districts are not protected under section 5. That’s a critical legal hurdle. The Travis County intervenors still need to show that the existing CD-25 is a crossover district on the facts, but given that is an argument based largely on the performance of Austin, they would seem to have a good shot at doing so.
2. Overall, the opinion favors the state’s maps, but so would any permanent remedial map drawn after a decision in the section 5 case being tried in Washington this week and next. In other words, the opinion in that sense just requires that the result look something like the ultimate outcome. It’s hard to complain too much about that. It’s a defeat for the interim maps, but not necessarily for redistricting plaintiffs.
3. The primary is moving or at least the primary schedule will need to be adjusted. The opinion makes very clear the San Antonio court is supposed to explain in some detail in writing what it is doing when drawing interim maps. In other words, there will need to be more briefing and most likely argument. Given the presence of lawyers in Washington though next Thursday, it’s not clear that process could start before the week of January 30. I’ve explained more about the challenges here.
3a. The court does not seem to have seriously entertained Texas’ suggestion that its maps be adopted on an interim basis. Or if it did, it didn’t make its way into the opinion.
4. It’s not clear yet whether the D.C. case could result in a quick opinion that would effectively moot things. But with closing arguments not scheduled until February 3 (they could, I suppose, be moved up), it’s not clear how quickly an opinion could come.
5. Overall, the opinion is classic Roberts. Chief Justice Roberts has stressed his belief that it is very beneficial for the Supreme Court to speak with a unified voice as much as possible, particularly in sensitive or controversial cases. He hasn’t always achieved that, but this opinion fits right in with that philosophy.