Wow.
The Supreme Court, working late on a Friday, agreed to rule on the constitutionality of three redistricting plans for the two houses of the Texas legislature and its 36-member U.S. House of Representatives delegation, and put on hold temporarily a U.S. District Court’s interim maps. The Court called for expedited briefing, and set a hearing on the cases for Jan. 9 at 1 p.m. The Justices’ action gave Texas much of what its lawyers had sought in their challenge to the three-judge trial court’s temporary maps, which were to be used for the 2012 election cycle. The Court’s order is here. It raises the strong possibility of a major new ruling on the power of federal judges to draw up redistricting plans while a state legislature’s own maps are under challenge in court.
Although the state had initially sought only a stay of the temporary redistricting plans, it suggested as an alternative that the Court take on the cases itself, and issue a prompt ruling. That is what the Justices agreed to do, putting the cases on its docket for review as 11-713 (the Texas state house case), 11-714 (the Texas state senate case), and 11-715 (the congressional delegation case). What the Court did not do was order any immediate change in the way Texas candidates go about signing up to run in the 2012 primary, now set for March 6. Cases 11-713 and 11-715 go by the same title, Perry, et al., v. Perez, et al., and case 11-714 is titled Perry, et al., v. Davis, et al.
Candidates began filing for seats in the legislature and in the House of Representatives on Nov. 28, and the filing period now in effect was to continue until Dec. 15. Friday’s order made no immediate change in that. It was unclear whether the filing period is now to be interrupted until after the cases are decided, and, if not, what districts would actually be used for purposes of candidates’ filing in the meantime. The three maps drawn by the state legislature earlier this year supposedly cannot be used, because their validity under federal voting rights law and the Constitution is now under review by a different U.S. District Court, in Washington. And the interim districts crafted by the District Court in San Antonio cannot be used because they are now stayed by the Justices’ order.
The Court set this briefing schedule: it consolidated the cases, ordered Texas officials and the challengers to the legislature’s maps to file opening briefs simultaneously on Dec. 21. Reply briefs from both sides are due Jan. 3. The oral argument on Jan. 9 will be for one hour only.
I have no freaking clue what comes next. Dozens of candidates have filed for offices, many of them have already raised and spent money, and they may wind up not being eligible for the district they have chosen to run for. For that matter, at least one legislator has stepped down on the grounds that he can’t win the district that was drawn for him. The filing deadline is next Thursday, but who knows what that means now, as no one can say for certain where they may wind up. We may wind up with a bifurcated primary, with the Presidential and non-legislative races in March and the Lege, Senate, and Congress in May. It’s just chaos.
Case law is apparently sparse on the power of the federal judiciary to draw maps, so to say the least we are way out in uncharted waters. Where we go from here is anyone’s guess.
UPDATE: Harold is on the same page as I. I’m taking his advice and enjoying my weekened, because there damn sure isn’t anything I can do about this.
UPDATE: Greg goes into what the stay means from a logistical standpoint.
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The complaints that candidates have raised and spent money, or may not be eligible to run in a certain district are the mirror complaints of folks like Holm, Scofield, Witt, and others who had geared up for the HD136 contest to replace the retiring Beverly Woolley, only to have the court jerk their district out from under them. The complaints that a candidate had given up hope because of being unable to win a district is a mirror of the concerns Ken Legler might have.
So they ring hollow to me.
My impression is that the judges in San Antonio substituted their own judgment about what ought to be good districts for the views of the legislature, and are on shaky legal ground to create composite black-Hispanic districts not required by law. But even I did not expect the Supreme Court to wade into this morass, and on such an expedited schedule.
I predict the 3 judge panel will be harshly criticized by the S Ct. Their redrawing of every district was way out of bounds when the DOJ was on record as having issues with only 2 districts. There isn’t clear precedent because there are two pre-clearance paths (DOJ or a DC judge panel) but it is easy to see the S Ct using the DOJ precedent to decide this DC-panel case — courts almost always do that. It is a puzzle why the San Antonio panel didn’t take that more deferential path (and one that the Obama DOJ would appear to have been okay with!) — I guess those 2 judges (over 1 dissent) just felt like drawing their own lines, which I think will be fatal.
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