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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Opinion here. 5-4 Roberts writing for the court. Ginsburg, Breyer, Sotomayor, and Kagan dissenting.

While section 5 survives, the formula for determining what states and jurisdictions are subject to it no is enforceable.

There will be lots of analysis today from lots of different directions, but here’s a quick look at the immediate practical effects for Texas.

[Note: Updated to include description of some of the procedural steps the state will have to take to implement either the 2011 maps or the voter ID law.]

Redistricting

The Texas Legislature completed the process this weekend of adopting the 2012 interim maps as permanent maps (with just the most minor of changes to the state house map). Those bills now are on Gov. Perry’s desk, awaiting signature.

On the other hand, right now, there is no longer any preclearance bar, and the maps passed by the Texas Legislature back in 2011 will be - technically - legally operative (Plan C185, Plan S148, Plan H283) once the Attorney General takes procedural steps to make them so, including getting the injunction against use of the maps lifted.

Governor Perry now has to decide what to do next.

In some Republican quarters, there conceivably could be a call for return to those maps.

At the same time, if the state’s goal is to minimize the risk of litigation and the possibility of yet another delayed primary, moving forward with the interim maps is the state’s best hope of doing so - short of a full settlement with minority groups.

That’s because the interim maps incorporated changes based, in part, on what the San Antonio court found were non-section 5 problems with the maps (e.g., fracturing of non-Anglo communities in Dallas and Tarrant counties addressed through the creation of CD-33). And if the state were to try to return to the 2011 maps, it is likely that African-American and Hispanic plaintiffs would oppose efforts to lift the injunction barring use of those maps on the grounds that they have shown a likelihood of success on those changes.

But internal party politics can be unpredictable, and it remains to be seen how things play out. 

Regardless, whatever the maps end up being, they will head back to the San Antonio court which, over the next few weeks (months) will decide what additional changes need to be made to the maps to fully address constitutional and section 2 claims, including claims of intentional discrimination.

If the court cannot complete the process by early September (or end of September at the very latest), it may need to put another set of interim maps in place to allow the 2014 election cycle to go forward with minimal disruption.

Voter ID

The situation on the voter ID front is a bit less convoluted.

The state and Texas Attorney General Greg Abbott now can move forward with implementation of the law, again assuming the state takes procedural steps to officially vacate the three-judge panel’s ruling on the law.

To be sure, the Department of Public Safety and election officials will have to take steps to be implement the law, but it is very possible those steps can be completed in time for the law to be in place for municipal and constitutional amendment elections in November 2013. If not, the law will almost certainly be fully operative by the 2014 Texas primary in March.

Don’t count on the litigation to be over, however. It is possible that groups opposing the law could bring a suit to enjoin enforcement of the law on section 2 or constitutional grounds. To get an injunction, though, they would have to meet the high standard for injunctive relief (irreparable harm, substantial likelihood of success on the merits, etc.) 

Supreme Court appeals

The two pending Supreme Court appeals by the State of Texas challenging preclearance decisions on redistricting and voter ID are now moot.

However, the redistricting plaintiffs have indicated that they believe the opinion in the redistricting case is still entitled to preclusive effect under estoppel doctrines. That is an issue the San Antonio court - and perhaps ultimately the Supreme Court - will have to sort out as a part of deciding constitutional and section 2 claims.