TEXAS REDISTRICTING & ELECTION LAW

When will we get maps?

Elections administrators told the court last week that maps will need to be in place by March 3 in order to have a May 29 primary. While the court has not said anything definitive, the signs seem to be that the court is trying hard to work toward that date.

When exactly maps will be done, though, is unclear.  

For one thing, the Supreme Court ruled back in January that if the San Antonio court makes any changes to the Texas Legislature’s plans, it needs to explain the changes carefully and in detail - which means writing fulsome opinions. 

It’s not clear, though, from last week’s hearing that the three judges even agree on many of the key threshold issues, including the degree to which crossover districts are protected or the meaning of the ‘not insubstantial’ test. Similarly, from questioning last week, it’s not at all clear that Judge Smith completely accepts the argument for creation of a Hispanic leaning CD-33 in North Texas. Those issues could take awhile to hash out and, if they can’t be, we could be waiting for another majority opinion and dissent or perhaps a series of split opinions.  

Even if the judges agree, an additional complication could occur if the court accepts part of one compromise proposal and not other parts, since then it would have to spend time fitting pieces of different maps together - or perhaps even drawing its own map for some parts of the state.  Since changes in one district have ripple effects across the map, harmonizing things can be harder than it seems.

Still, the signs point toward maps by the end of next week.

That said, it is entirely possible the maps could be done sooner than March 3, and there seems to be the thought from a number of the parties (on both sides) that the maps may come down as early as this Friday or the first of next week.  

In the last round of interim mapdrawing the court released maps and asked for the parties for comments before issuing the final versions.  If it intends to do so again and finish the maps by March 3, that would argue for a map release in the next few days.

Could the primary be delayed past May 29?

The court has told the Democratic and Republican parties to prepare - tentatively - for a May 29 primary, but the answer to the question is ‘yes.’

There are at least four ways that conceivably could happen.

First, Congressman Joe Barton and most of the redistricting plaintiffs (in a bit of an unlikely alliance) have urged the court to consider waiting for the D.C. court’s preclearance ruling. Although the court  so far seems inclined to draw interim maps to allow the election process to move forward, it is possible that they could change their minds if disputes prove too intractable.

The process also could be slowed down if the D.C. court does, in fact, issue a preclearance ruling ahead of schedule - as some of the parties suggested to the D.C. court on Wednesday would be helpful - thus requiring that the San Antonio court to stop to absorb the ruling and possibly adapt its maps.  

Regardless of when the preclearance ruling comes down, when it does, one or more of the parties also could try to reopen the map process to fix any inconsistencies (e.g., over the treatment of CD-25). It’s not clear that the court would take up the invitation but, if there are any significant differences between the two courts on section 5 issues, the request seems not unlikely.  If the court does make changes, that could mean a delay in the primary or at least a special primary for affected districts.

Last but not least, it is at least theoretically possible that one or more parties could appeal the court’s interim map order to the Supreme Court and seek a stay.  Most observers think the Supreme Court would be unlikely to issue a second stay, but it remains a possibility.

In any event, if the maps are not done by March 3 for whatever reason, or if there is an appeal or further litigation after the preclearance ruling, Texans likely would be looking at a June 26 primary, with a runoff in September.

None of which is to say that any of these outcomes is highly likely.  But then again, who thought just a few months ago that we would be talking about a May 29 primary or have already been to the Supreme Court and back once.

Once the maps are done, will the filing period reopen?

The political parties will be submitting a proposed schedule addressing the filing period and other election schedule issues, but the talk to date has been of at least a 2-3 day filing period.

The parties may want it slightly longer, however, to make sure they have the ability to fill vacancies if candidates or officeholders switch races.

As of yet, none of the proposed election schedule changes have been made public.

Will the new maps need to be precleared under section 5 of the Voting Rights Act?

The Justice Department told the San Antonio court that any map would need to be precleared under the Supreme Court’s decision in McDaniel v. Sanchez to the extent the map was drawn by the state or reflects policy choices by the state.

However, lawyers for DOJ told the court last week that expedited review would be available and stressed that DOJ would work to make sure the process was moved along as quickly as possible.

Since DOJ is already familiar with the Texas issues and disputes, most observers feel that DOJ preclearance review would not likely interfere with a May 29 primary.

Of course, this assumes that the state chooses to submit the maps to DOJ for review rather than seek signoff from the D.C. court.

What about changes to the delegate selection and party convention process?

The Republican Party of Texas is set to finalize its proposed party rule changes on February 29, and the Democratic Party of Texas is working with the Democratic National Committee on changes to its party convention and delegate process.

So far, both sets of proposals look broadly similar and would involve either eliminating precinct conventions or, in the case of Republicans, making them optional and possibly the day of the senate district/county convention. Both parties also open the senate district/county conventions to all comers who take a loyalty oath. 

It’s not clear whether the Election Code changes needed to allow the rule changes will be submitted to the court along with election schedule changes or separately, but, in any event, that should occur by the end of next week.

The rule changes also would need to be submitted to DOJ for preclearance under section 5 of the Voting Rights Act; however, DOJ has said that it is prepared to review the changes under expedited review.