There’s almost too much information to parse on the legal arguments made before the Supreme Court over the Texas redistricting maps. Let’s start with The Hill:
The Supreme Court justices grappled to find a way to resolve a messy Texas redistricting case during oral arguments Monday morning, presenting then knocking down a variety of small-bore solutions to reach an interim map for Texas’s congressional and state-level elections.
The justices were clearly unhappy with their options, not wanting to put in place either Republican state legislators’ redistricting map or a state-drawn “bipartisan” map that drew in parts from the GOP map. They seemed to be looking for the solution that would have the least legal and political impact. But whatever they do could sway a few congressional seats to one party or the other in the next election — and affect how the Voting Rights Act is applied for decades to come.
At issue is an interim map drawn by a Texas court that could be used for this year’s elections, while the long federal process of approving or striking down the Republican-controlled Texas Legislature’s maps plays out. Under the Voting Rights Act, Texas has to get approval of any maps by either the Justice Department or the U.S. District Court for D.C., because of the state’s history of racial discrimination. The D.C. court has indicated that the Republican map is unlikely to be fully approved.
This is just one of many legal cases pending on the maps. The D.C. court is set to decide whether the maps violate the Voting Rights Act early next month, not early enough for Texas to be able to draw a new map without having to move back its primary. The U.S. District Court for the Western District of Texas will likely have to make some changes one way or the other on its own map — which it drew after rejecting the Legislature’s map — assuming the Supreme Court addresses its concerns to that San Antonio court and not the D.C. court.
Most of the justices indicated they thought both maps were unacceptable and could not be put into law without violating the Voting Rights Act. They might decide that the new map drawn by the Texas Legislature should be the benchmark from which to work, but that the state has to show in every instance that it is not discriminating against minorities. This approach seemed to be favored by Justice Anthony Kennedy, perceived as the swing vote on the highly polarized court.
This could lead to a new map that followed the basic contours of the state-drawn map but would be greatly altered where the courts found cases of discrimination. This would likely lead to a new temporary map that falls somewhere in between the two existing options and could force Texas for the second time to move its primary back. It is currently scheduled for April 3.
Right now, the surest bet seems to be that you can cross April 3 off your calendar for the primary elections. The absolute drop dead date, given Texas’ election codes, is June 26, which would mean that both parties will have conducted their biennial conventions without having precincts in place for precinct chairs. Keep that in mind when you read this:
Several justices considered whether courts could resolve the matter in time for the April vote. “Why can’t this all be pushed back and wouldn’t that eliminate a lot of the problems we are grappling with in this case?” Justice Samuel Alito asked.
Justice Alito is asking if SCOTUS can’t just wait till the DC court issues its preclearance ruling. One wonders why SCOTUS didn’t think about that before granting that stay and thus throwing the entire election calendar into chaos. Rick Hasen addresses the possibilities.
2. The two most likely outcomes appear to be (a) follow Justice Kagan’s approach or (b) wait it out for the D.C. court. Justice Kagan’s approach would be a remand to the San Antonio court, with instructions for Texas to justify why its lines were likely to be precleared. Wherever Texas could make that showing, the court would defer to Texas map. Wherever Texas could not make that showing, the judges would not rely on Texas’s map (they might be told to rely on the old lines, taking into account section 2 and constitutional considerations. The alternative is to hope that the D.C. court could decide this case on the merits in time, thereby mooting the need for the interim map.
3. Both of these outcomes present challenges given the timing, especially if there are further appeals to the Supreme Court if either the San Antonio court draws new maps under the Justice Kagan approach or the D.C. court denies preclearance of some parts of the plan and an interim map must be drawn partially using Upham deference. On timing, the Justice Kagan approach is better, because there would be time for another appeal to the Supreme Court if necessary. Drawback of Justice Kagan plan: it requires going back to the same 3-judge court in San Antonio which the conservatives on the Court may well not trust to do a good/fair job, based upon comments at today’s argument. But Chief Justice Roberts seemed unsatisfied with Texas’s position and what the three-judge court did, and I could see him getting 8 or 9 justices to agree on a quick order following the Justice Kagan approach.
Personally, I can imagine worse outcomes than the Justice Kagan approach. If that’s really what happens, I can live with it, and might even wind up being reasonably happy about it. The way I’ve looked at this all along is that from my perspective this case is basically like defending a swing seat. The best outcome for you is status quo, and any change is necessarily for the worse. Still, there’s a fair amount of room between what the Lege did and what the San Antonio court did, which means there’s still a fair amount of room for the final outcome to be an overall positive. I’m going to hold onto that for now.
One other thing to note is this:
5. What’s not at stake in this case: the constitutionality of section 5 of the Voting Rights Act. Chief Justice Roberts put the kabosh on that directly:
MR. GARZA: …And there is a good reason why Texas is covered under the Voting Rights Act. As this Court indicated in — in LULAC v. Perry, there is a terrible history of historical discrimination in Texas, including discrimination–
CHIEF JUSTICE ROBERTS: The constitutionality of the Voting Rights Act is not at issue here, right?
MR. GARZA: That’s not.
“Mr. Garza” is Jose Garza, who argued the case for the plaintiffs. I presume he actually said “That’s right” or something to that effect – you can see the whole transcript here if you want to check for yourself. Robert Miller opined that Section 5 was at stake, but so far no one else seems to be of that opinion.
SCOTUSBlog, which also noted that Justice Roberts steered the discussion away from the constitutionality of Section 5, has the most in depth coverage, including this description of how the Kagan plan came to be:
Just before Garza finished, Justice Kagan asked him what he would think about an alternative which would start with the Texas legislature’s maps, allow any part of them to “go forward” if they were “consistent with the law and the Constitution,” but put the burden on the state of Texas to show that its plan is consistent with its legal obligations. That, said Garza, would be “a much more reasonable approach” than Texas had been seeking, which was to put the burden on the minority groups and voters to show what parts of the Texas plan were invalid. The Kagan idea, the lawyer finished, “is far more preferable than shifting the burden” to the challengers.
When Clement returned for rebuttal, Justice Scalia asked him to react to the Kagan alternative. Clement said it would be better than the San Antonio court’s maps. Before he finished, he suggested that Texas might find some favor in Kennedy’s idea of taking Section 5 out of the San Antonio case, but added that such a move might make complications for how the two District Courts proceeded from here on.
Because the Court has been told that new maps must be in place by February 1, if the presently scheduled April 3 primary is to go forward, the Justices are expected to act quickly, though on no specifically known timetable. It is conceivable that they could issue a fairly brief order, with an explanation to come in a later opinion. Both of the two District Courts involved in the Texas cases have taken that very approach. However, if the outcome the Supreme Court chooses is to include new guidance for the San Antonio court, that presumably could not await the preparation of a later opinion.
As before, all we can do now is wait and see what happens. Maybe I’ll have more time to do primary interviews (and less time for general election interviews) than I’ve currently planned for. Here’s more from Michael Li, who also has statements from MALDEF and AG Abbott; the Trib; and PDiddie.
UPDATE: Links to more coverage can be found here.