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Still waiting on SCOTUS

Responses to the State of Texas’ stay request for State House and State Senate elections were due Thursday. Responses to the stay request for Congressional elections, which was filed Wednesday, are due this morning. It’s not clear when SCOTUS will rule on the requests. We’ve now had a full week of candidate filing, with ten more days to go, and there have been some high profile entries and exits. It seems to me that delaying these elections would throw all of that into chaos, as well as ensuring two very different electorates for the two different election dates. I would think that would weigh on the Court’s decision, but what do I know?

In the meantime, AG Greg Abbott has taken his whining to another level.

Texas Attorney General Greg Abbott today accused the Department of Justice of unnecessary delay tactics in the lawsuit over Texas’ redistricting maps, venting his frustration in a letter to the department’s Civil Rights Division head Tom Perez.

Abbott’s claims come less than two weeks after a Justice Department filing blamed Texas for the delays.

The 1965 Voting Rights Act requires Texas to get preclearance on its electoral maps, either from a federal court or the Justice Department. Last July the state filed suit in federal court asking for a judgment of approval that would circumnavigate the Justice Department. The Department found fault with the Texas maps, declaring them discriminatory against racial minorities and setting the stage for a courtroom showdown.

Abbott said he and Perez agreed to handle the litigation as quickly as possible, but says the DOJ is now delaying the process in an attempt to impose upon Texas the interim maps drawn by a panel of federal judges.

“For example,” Abbott’s letter reads, “shortly after Texas filed its petition for declaratory judgment, we filed a motion asking the district court to review this matter on an expedited basis. Your office opposed that motion. Further, despite the fact that we promptly responded to the Civil Rights Division’s repeated requests for additional information about the State’s redistricting plans, your office nonetheless demanded extensive discovery that further delayed the process.”

State Rep. Trey Martinez-Fischer has the appropriate response.

“Abbott is attempting to pivot and shift the blame,” said Martinez Fischer, who chairs the Mexican American Legislative Caucus, which has sued the state for creating maps that the caucus says dilute the minority vote.

Martinez Fischer said the pre-clearance process would have been quicker if Abbott, a Republican, had chosen to have pre-clearance considered by the Department of Justice instead of letting a District of Columbia federal court decide.

Since census data was released this spring, the Justice Department said it reviewed and pre-cleared 18 statewide redistricting plans in seven states, including Alabama, Louisiana, Virginia, North Carolina and Alaska. It also pre-cleared Texas’ proposed boundaries for the State Board of Education.

The Justice Department said in a filing last month that “the State itself has caused the delay in the pre-clearance process.” The department noted that Texas waited until the end of the legislative session to pass the state House and Senate plans and didn’t pass a congressional map until a special session in June.

The department also said that Gov. Rick Perry waited almost a month after the state House and Senate plans were enacted before he signed them into law.

Since the initial DC Court ruling denying summary judgment came down, the commenters there have been pretty brutal on Abbott, blaming him and his staff for the GOP’s setbacks so far in the legal process. They have now been joined in their criticism by State Sen. John Carona.

Carona confirmed that there were many Republicans at the Capitol who are not happy with the way that Abbott has defended the state’s redistricting plans for the Texas House, Senate and congressional districts in federal court.

“The attorney general’s office appeared to be late in the game and they obviously made some critical tactical errors from a Republican perspective. Those things will, perhaps, work themselves out over time — the real issue here today and the reason for my posting, is just that I think, in the role of attorney general for this or any other state, he ought to be all about making unemotional and factual arguments.”

He continued: “I don’t see where finger pointing or accusations towards the Department of Justice improve our position, particularly for the Republican majority of voters that exist today. For us to further stir the pot with the Department of Justice in an emotional manner just weakens our position and ultimate outcome.”

Pretty strong stuff. In addition to that, this statement from an interview with Professor Henry Flores, who testified for the plaintiffs, adds some more perspective:

[T]he Attorney General used lawyers who were corporate- or litigation-types, but they didn’t know election law and voting rights law. But on the other side, with Nina Perales and the rest of the lawyers you were looking at hundreds of years of experience in civil rights cases.

Perhaps this is why the AG went out and got an expensive hired gun for the stay requests. The plaintiffs added their own expert as well, hopefully at a slightly lower rate. Abbott is now pushing for a trial in the DC court to begin next week; the court will have a status conference on Wednesday, at which I presume that subject will arise. What’s Abbott’s game here? The response to his whining from U.S. Assistant Attorney General Tom Perez sheds some light:

Perez laid the blame solely for delays at the feet of the State of Texas:

[T]o be clear, the State of Texas bears responsibility for any delays in the preclearance process – by waiting until the end of its legislative session and even into a special session before seeking preclearance, by further delay after passage before seeking preclearance, and by inexplicable litigation decisions that have slowed the resolution of this matter.
Perez said those ‘inexplicable litigation decisions’ included the state’s rejection of an October 17 trial date offered by DOJ and instead its insistence that no trial was needed because the DOJ was using the wrong legal standard and that, under the “correct” alternative standard developed by Abbott, he could show that the state’s maps passed muster as a matter of law.

Readers will recall that a three-judge federal panel in Washington rejected the state’s theory on November 8, and Perez reminded Abbott:

The Department has maintained from the outset that this action could not be resolved by summary judgment, as the Court’s order denying the State’s [summary judgment] motion now makes clear. Indeed, at a September 21 scheduling conference, the Court itself offered the State the opportunity for a speedy trial instead of proceeding with a summary judgment motion, but the State also refused that offer and insisted on seeking summary judgment. The State has taken this course knowing full well that candidate qualifying under the State’s own schedule was to begin in November 2011.

Perez also rejected Abbott’s call for a quick mid-December trial, saying that no trial date could be set before knowing whether the Supreme Court would stay the interim maps:

[U]nder the governing case law, the court-drawn interim plans from [the San Antonio case] could become the new benchmarks whether the statewide redistricting plans at issue in the D.C. District Court will receive preclearance under Section 5 … It would be a waste of resources to spend time preparing for a trial in mid-December based on the current benchmarks if we will know shortly whether the plans adopted by the [San Antonio] court will be new benchmarks.

And that maybe gets at the heart of why Abbott’s a little jumpy.

Indeed. This is shaping up as a huge week. The Star-Telegram, SCOTUS Blog, Michael Li and Burka have more, including a lot more Abbott-bashing in the comments.

Finally, on a related matter, State Rep. Rafael Anchia writes about the other Texas matter pending with Justice, the voter ID law.

I have always argued that any photo ID law contain vote-saving provisions ensuring no duly-registered Texas voter is left behind. In Idaho, among the reddest of red states, the photo ID law allows duly registered citizens without photo ID to issue an affidavit under penalty of perjury in order to vote. In Florida, the Republican photo ID law allows voters without photo ID to cast a ballot that undergoes a signature match (like we do with mail-in ballots in Texas). During the debate on the House floor, I offered amendments based on these models, but they were rejected.

At the risk of saying, “I told you so,” it comes as no surprise to those of us who predicted that the DOJ would take issue with the more onerous provisions of this legislation. During the house debate, I also offered an amendment that would have delayed enactment of the strict photo ID law until the SOS had furnished the very type of data that the DOJ is requesting today. Disturbingly, no voter impact analysis had been conducted and, during the debate on this bill, I introduced studies suggesting that between 150,000 and 500,000 registered voters in Texas do not have the kind of photo ID that would be required to vote. As it turns out, I was too conservative in my estimates, and in fact we now know that up to 600,000 Texans may not be able to cast a regular ballot under the new law.

You would think that, before pushing for this legislation, the authors would have asked how the bill adversely affects Texans’ right to vote. What was their acceptable threshold for disenfranchisement? Was it 100, 100,000, or 600,000 Texas voters? To put 600,000 voters in context-that’s about the number of people who live in each of the states of Vermont and Wyoming. It seemed as though Texas Republicans never really wanted to answer that question. Despite the studies predicting that the bill would adversely affect the voting rights of hundreds of thousands of Texans, undoubtedly among them thousands of Texas Republicans, the authors of the bill simply ignored these inconvenient data points.

And the reward for that indifferent attitude should be not getting to implement that discriminatory law.

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  1. […] update on what’s going on with all the Texas litigation at the US Supreme Court and the DOJ, Still Waiting on SCOTUS. Responses to the State of Texas’ stay request for State House and State Senate elections were […]

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