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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Today’s redistricting hearing in San Antonio was largely procedural but did have the court wrestling with some key threshold issues.

Indeed, much of the hearing centered the possible legal consequences of the Texas Legislature making the interim maps permanent.

Hispanic and African-American plaintiff groups took strong issue with the State of Texas’ argument that the case would essentially begin anew.

Jose Garza, counsel for the Mexican-American Legislative Caucus, told the three-judge panel that, if the Legislature were adopt the interim maps as permanent, the plaintiffs would be amending their pleadings to include claims based on those maps - and that case law supported the court’s retention of jurisdiction in those circumstances.

And they argued that because the new legislative maps would not really be new maps but rather a variant of the legislatively enacted maps that the court previously considered, the court’s work would essentially pick up where it left off when the interim maps were adopted. 

At various points in the hearing, the narrowness of Gov. Perry’s special session call came into question.  

Although the state’s lawyer David Mattax said that he could not say whether the call would restrict consideration of alternate maps, lawyers for plaintiff groups - and Circuit Judge Jerry Smith - suggested that it did - and plaintiff groups said that was further evidence that not only were the maps not new, but that Republican leaders had predetermined the outcome - and once again excluded meaningful input from minority groups. 

But in a sign of how complicated and unprecedented the current scenario is, Garza and lawyers for the other plaintiff groups said how the court went about its work would depend on whether section 5 survives Shelby Co.  

If section 5 is upheld, they said the court would need to consider whether adjustments to the maps would be needed to incorporate the D.C. court’s preclearance findings - a position that Mattax agreed with notwithstanding his position that the maps would be new enactments.

And, if section 5 is struck down, the court would need to address the plaintiffs’ section 2 and constitutional claims, giving preclusive effect to the D.C court’s ruling on issues like discriminatory intent.

The preclusion question drew opposition from the state and extended questioning from Judge Jerry Smith - but no resolution today.

In fact, very little got decided today.

For all the wrestling, the hearing ended on a technical note with the court ordering the parties to brief by next Wednesday questions about admissibility of new demographic and election data and to begin the process of compiling record excerpts from the D.C. court (though the court said it would reserve a determination of whether and for what purpose to admit that evidence until a later date).

The court did not say when it would reconvene but based on comments today, it does not appear that further proceedings are likely until after a ruling in Shelby Co.

Other highlights:

  • Congressman Pete Gallego (CD-23) and Congressman Filemon Vela (CD-34) will be intervening the case. 

  • The State of Texas and lawyers for State Sen. Wendy Davis also agreed that the interim state senate map should be the permanent remedial map, with an order to that effect to be entered some time after conclusion of the current special session. The parties said they also had agreed to a schedule for determining the amount of attorneys fees and costs to be awarded to Davis and her fellow plaintiffs.

  • Attendees at the hearing included Congressman Marc Veasey, State Rep. (and MALC chair) Trey Martinez Fisher, and State Rep. Chris Turner.