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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This afternoon, the San Antonio court entered an order denying a request by the State of Texas to dismiss claims about the 2011 maps on grounds on mootness. 

The court’s order also granted requests by African-American and Hispanic plaintiffs to amend their pleadings to add requests that Texas be bailed into preclearance coverage under section 3 of the Voting Rights Act as well as claims about the 2013 maps.

But the court said that because “a full, fair and final review of all issues before the Court cannot be completed prior to upcoming deadlines for the 2014 elections,” the court would adopt the 2013 maps as interim maps for the 2014 election cycle - stressing, though, that the maps were being adopted “on an interim basis only.”

In holding that claims about the 2011 maps were not moot, the court said:

[T]he standard for determining whether a case seeking prospective relief has been mooted by the defendant’s voluntary conduct is whether ‘subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not be expected to recur.’ The heavy burden of persuading the court that the challenged conduct cannot reasonably be expected to recur lies with the party asserting mootness.

                                                              …

[T]here is no indication or assurance that, in the next redistricting cycle, the Texas Legislature will not engage in the same alleged conduct that Plaintiffs assert violated their rights, including removing economic engines from minority districts, dismantling coalitions, manipulating turnout among Hispanics, or engaging in other conduct that Plaintiffs allege violated their rights in connection with the 2011 plans. While Texas may have voluntarily ceased or diminished the allegedly illegal conduct, it has not conceded the illegality of the conduct and has steadfastly maintained that its actions did not violate Plaintiffs’ rights. The fact that the Legislature has adopted the Court’s interim plans in an attempt to curb this particular litigation is no assurance that it will not engage in the same conduct in the next legislative session or any session thereafter.

In addition to allowing African-American and Hispanic plaintiffs to amend their pleadings, the court also allowed the Texas Democratic Party to assert a renewed claim that the maps represent an unconstitutional partisan gerrymander.

A copy of the court’s order, which was signed by all three judges on the panel, can be found here.

Separately, the court entered an order allowing the plaintiffs to supplement the record in the case with approximately 400 documents from the Texas preclearance case tried in Washington.

However, in a third order, the court denied a request by the Texas Latino Redistricting Task Force to supplement the record with excerpts of trial transcripts from the D.C. case, saying that the court would be “unable to fully assess the credibility of the witnesses unless they testify in person.” However, the court said its ruling was without prejudice if witnesses were unavailable to testify in person.

Today’s rulings did not include a decision on the request of the Justice Department to join the case, but a ruling on that request is expected to be forthcoming shortly - and all but certainly will be one that lets the department be heard in the case in light of the federal government’s special role in enforcing voting rights laws and the court’s decision to take up section 3 issues.

The court’s orders did not give any indication of when it would schedule evidentiary hearings on the claims left before it, but did say that the “litigation will continue for as long as it takes to reach a legally correct decision on very important issues.”

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