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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What happens now in the Supreme Court?

With the filing of motions to affirm or dismiss last week by the Justice Department and intervenors, Texas’ appeal of the preclearance ruling is now ready for review by the Justices.

Under Rule 18 of the Supreme Court rules, the clerk of the Supreme Court must submit the briefs to the Justices by December 17. (While the state has the right under the court’s rules to respond to the motions filed last week by DOJ and the intervenors, the rules provide that the submission of the case to the Justices “will not be deferred pending its receipt” and the author understands that the state has already told the clerk that it will not be submitting any additional briefs.)

Because the Justices have already finished the December series of conferences where they review cases, the earliest opportunity the Justices will have to decide what to do with the Texas redistricting case would be at their January 4 conference. After that, the Justices have conferences scheduled January 11 and 18 and then February 15 and 22.

What are the options?

Because appeals from three-judge panels are what is known as direct appeals, the Justices’ process for reviewing the case is a little different than the more familiar discretionary appeal where a party files a petition for writ of certiorari asking the court to take the case.

If four Justices agree, the court could ‘note probable jurisdiction’ and set the case for oral argument before the full court. If that occurs, the case most likely would be argued in March or April.

The court also could summarily affirm the decision of the district court - something that the Justice Department and intervenors have urged it to do, albeit to varying degrees.

The court also has the option of dismissing the appeal for not presenting a question worthy of the court’s time.

If the court summarily affirms, its affirmance carries precedential weight (i.e. can be cited by parties in other cases as a binding decision of the Supreme Court). On the other hand, a dismissal of the appeal carries no precedential value and is the functional equivalent of a denial of certiorari.

While noting probable jurisdiction requires the vote of four Justices, a summary affirmation or dismissal of the appeal would require the vote of at least five Justices.

In the Texas case, there are two other options also available to the court.

On the state senate map, DOJ has asked the court to send the state senate claims back to the three-judge panel for supplemental findings. If the court agrees, it could bifurcate the case and delay a decision on whether it wants to hear the state senate claims.

Last but not least, the court could stay any action in the case until the court decides the constitutionality of section 5 of the Voting Rights Act in Shelby Co. v. Holder. The Texas Latino Redistricting Task Force has suggested that this is the appropriate course.


What about new maps?

When the order denying preclearance to Texas’ legislatively drawn maps came out in late August, it became the responsibility of the three-judge panel in San Antonio to figure out how to implement the decision. This is because while section 5 gave the DC panel the power to deny preclearance, it did not give the DC court the power to fix the maps.

The San Antonio panel asked from the parties for recommendations for the process going forward and received them on December 3. The court now has to decide how to proceed.

Two factors complicate the court’s decision. The first is the state’s appeal of the preclearance ruling to the Supreme Court. The second is the Supreme Court’s decision in Shelby County to take up the question of the constitutionality of section 5 of the Voting Rights Act - the statute on which the preclearance ruling was based.

Many observers expect the court to wait a bit before deciding on a course. As a practical matter, there is little for the court to do right now. Election results are still being entered (because election-day voter rolls in Texas have to be hand scanned, we know who won but not necessarily who voted at this juncture) and further work will need to be done afterwards by experts to determine what candidates people voted for (since ballots, after all, are secret).

At some point, however, the three-judge panel in San Antonio will have to decide whether to wait for a decision from the Supreme Court in Texas redistricting appeal and/or Shelby County or whether to proceed with the process of developing new maps.

What is likely?

At this point, it is hard to say.

However, a number of observers expect the court to wait at least until January to see whether the Supreme Court decides to hear an appeal of the redistricting ruling.

On the other hand, if the court is to avoid a repeat of the mess of last cycle when maps and then the Texas primary were delayed several times, a strong case can be made that the court should by late January or early February at least start the process of developing new maps. The State of Texas, however, has taken the position that any discussion of new maps (if even needed) is premature until the Supreme Court decides both the Texas redistricting appeal and the questions about the constitutionality of section 5.

A wildcard in all of this is whether the Texas Legislature decides to take up redistricting on its own. Texas Attorney General Greg Abbott has taken the position in court filings that the interim maps adopted by the court this year fix all the problems identified by the DC panel, but his position would not preclude the Legislature from acting on its own.

Could the primary be delayed again in 2014?

Yes, it’s possible. But don’t say it out loud. And hopefully it doesn’t come to that. For now, the filing deadline remains December 9, 2013 and the primary March 4, 2014.

[Correction: The date of the primary filing deadline originally was listed in this article as December 15]