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Interim maps and the DC preclearance case

The federal court in San Antonio has been hearing arguments about proposed interim Congressional maps this week. Michael Li summarizes the plaintiffs’ case for why the map adopted by the Lege cannot be used, even as a starting point.

Right off the bat, the panel began by asking lawyers for the plaintiffs whether it would be possible to use uncontroversial portions of the state’s maps to form the core of the interim maps, citing the Panhandle as one example of an area where none of the plaintiff groups had alleged any problems.

Jose Garza for MALC gave the main presentation for plaintiffs and told the court that was impossible.

Until there is an adjudication that a map does not retrogress, Garza explained, a map cannot be used.

Garza distinguished the current situation from that in the Upham case cited by the state where the Department of Justice had objected to some parts of a map but not to others. In that case, Garza explained, the state (also Texas) had sought preclearance through an administrative proceeding before the DOJ. By contrast, in this case, the state had elected to go to a different decisionmaker- the three-judge panel in Washington – and, as a consequence of its own choice, there was no binding adjudication clearing portions of the maps.

Any other course would turn section 5 on its head, Garza said, by allowing a state to do exactly what section 5 prohibited – i.e., putting into effect an unprecleared map.

Garza further explained to the court that both the DOJ and intervenors in the D.C. case were alleging that the state’s maps were the product of a discriminatory purpose. According to Garza, this discriminatory purpose “infected’ the entire map and made it suspect.

Rather than starting with the state’s maps, lawyers for the plaintiffs told the court that the proper starting point for interim maps was the last legally enforceable map, i.e., Plan C100 – the current 32 district map.

The state naturally disagreed with that, and argued they were due some deference on the legislatively passed map. The questions they got from the judges over their argument seemed to indicate they did not see it that way.

If the judges agree with the plaintiffs, all of whom submitted their own proposals, what should the court use to guide it? The plaintiffs have a plan for that.

At the conclusion of the hearing, the panel asks the plaintiffs if they might be able to narrow the maps at issue by agreeing to maps or parts of maps. Jose Garza told the court that he thought at a minimum the plaintiffs would be able to clarify which of the other parties’ maps they endorsed and would try to have an announcement for the court when hearings resume Thursday morning.

The plaintiffs are expected to wrap up the congressional map portion of the hearing Thursday morning before moving on to interim state house maps.

Hearings on an interim state senate map are currently scheduled for Friday morning, but the parties indicated they might be ahead of schedule and would be prepared to do the senate map portion of the hearings on Thursday as well.

There was also discussion about a “compromise” map put forth by Reps. Henry Cuellar and Quico Canseco, and what disagreement there was among the plaintiffs mostly centered on Travis and Bexar Counties.

Meanwhile, arguments in the DC preclearance lawsuit got underway yesterday. Here’s an overview of the players involved, the arguments each side will be making, and the stakes.

Do the maps go into effect if the panel agrees with the State of Texas and grants preclearance?

No, not necessarily.

The state still will need to get past the panel in the parallel San Antonio case.

That panel last month heard claims under section 2 of Voting Rights Act that the state failed to create enough minority opportunity districts and various other constitutional claims but has been waiting to rule until a decision on preclearance.

Well, what happens if the court agrees with DOJ and the intervenors and holds that the maps are not enforceable?

If DOJ and the intervenors prevail, action still would shift back to San Antonio for the court there to draw remedial maps to remedy defects found by the D.C. court as well as to address any issues raised in the San Antonio case.

The degree of latitude the San Antonio court will have in drawing maps will depend on whether the entire map is invalidated or only parts of the map.

In theory, Governor Perry also could decide to call a special session of the Texas Legislature to draw replacement maps, but even the state’s lawyers concede that is not realistic since election deadlines are coming up and any legislatively passed map would need to go back through the preclearance process.

What about those election deadlines?

Right now, the candidate filing period in Texas opens November 12 and is scheduled to close December 12. However, the panel in the San Antonio case has indicated that it is likely to alter some of those deadlines.

The San Antonio court has asked the parties to submit proposed orders by 10:00 a.m. on Friday, November 4, with their suggestions for changes that need to be made. The expectation is that the court will enter an order by the end of the day.

More on the discussion about election deadlines can be found here:

The state has also made explicit its belief that the whole preclearance process is itself unconstitutional. Needless to say, that would be a big effing deal if it carries the day.

Whatever the case, no one expects the DC court to rule any time soon, so interim maps are all but guaranteed. And at least for the Congressional map, that looks like good news for Democrats.

If the Republican map became law, the GOP would likely enjoy a 26-10 advantage in the state House delegation, up from the 23-9 edge the party has now. But a court-drawn map will likely give Democrats 12 or 13 seats instead.

Republicans put themselves in this predicament with an aggressive gerrymander that might not pass legal muster. They also failed to pass a map with enough time to get it cleared in Washington, and opted to go through the courts instead of the Department of Justice, a much slower process.

The high stakes of the case could observed in the attendees: Top lawyers and strategists for both parties came to watch Wednesday’s oral arguments, as did Rep. Sheila Jackson Lee (D-Texas).

After judges questioned representatives of the state of Texas as well as officials from the Justice Department and civil-rights groups that are working to stop the map, they made it clear they would not approve the map early enough for it to be implemented in time for next year’s election.

They also seemed skeptical of the arguments Texas’s attorneys made about which factors should determine whether the state maps discriminated against minority voters — an ominous signal for the map down the road — and at times showed deference to Justice Department officials regarding some details of the case. Since those officials already have objected to aspects of the map, that is another bad sign for Texas Republicans.

Bear in mind that a 24-12 split, which would be a shift of two seats to the Democrats, still represents a two to one advantage for the Republican delegation. Outside of the 2010 anomaly, Texas is not a two-thirds red state. 23-13 is 64% GOP, still above the normal high water mark. A truly “fair” map, one that approximates the state’s normal statewide partisan performance, would be something like 57-43 GOP, or 21-15 in terms of the delegation. As I recall, only one of the Democratic maps proposed during the special session was that aggressive. Honestly, 23-13 is the best anyone can reasonably hope for – it basically means Dems get all four new seats – but forgive me if I temper my enthusiasm just a tad.

It’s unclear, and so far unreported, if there will be an interim map for the Lege and the Senate. Given that the Justice Department also objected to the Lege map, it’s hard to imagine there won’t be a court-drawn solution there as well. The Senate is more of an open question, since the DOJ took a pass on it. I guess we’ll find out soon enough. EoW has more.

UPDATE: And here’s a report from the DC Court hearing yesterday.

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