More to the point, the redistricting litigation continues, at least for the time being.
A panel of federal judges denied the state’s request to dismiss the case, though they left open the possibility that they could do that later. And they asked lawyers to file briefs on what should happen next.
Attorneys for parties objecting to the maps want the judges to consider evidence that lawmakers intentionally discriminated when drawing maps in 2011. That finding could be used to subject the state to federal preclearance of any new maps — such as the ones passed by the Legislature and signed last week by Gov. Rick Perry.
The state asked the court to drop the case, because lawmakers passed new maps and because the U.S. Supreme Court released Texas and other jurisdictions from a requirement to get federal preclearance on any changes in their election law.
The plaintiffs hope to “bail-in” the state through another provision that requires preclearance for states that have recently exhibited intentional discrimination in their voting laws. They say Texas did so in 2011 and should require oversight as a result.
The state argues that the findings of intentional discrimination came in a ruling that has been vacated and doesn’t apply.
Both sides were told to write up their arguments by mid-July.
The court also asked the lawyers to say whether the current redistricting litigation should continue, or whether the panel should disband and let any new cases go to a new court. That will also be the subject of legal briefs due later in the month.
Two issues lie in this legal thicket: When will the state’s 2014 primaries be held, and using what maps? The court hasn’t addressed that question yet.
As Texas Redistricting notes, this is about whether Section 3 of the Voting Rights Act is in play here.
As outlined in an earlier piece, section 3 would come into play if the court found that Texas had been intentionally discriminatory in adopting either the 2011 or 2013 maps – or had failed to fix intentional discrimination in the 2013 maps.
Although there was discussion about whether that could be done in the context of legal challenges to the 2013 maps, African-American and Hispanic plaintiff groups urged the court to first rule on the 2011 maps, saying that the record on the 2011 maps was substantially complete.
They also said this would allow the 2013 maps to be submitted for preclearance if the court determined that the 2011 maps had been enacted with discriminatory intent.
To start the process, the court asked the redistricting plaintiffs to brief section 3 issues by July 22, with responses from the State of Texas due by August 12.
The court also asked that redistricting plaintiffs submit any motions to amend the claims before the court by July 12, with objections by the state due July 19.
The court also gave the parties until July 22 to submit any documents from the D.C. preclearance that they thought should be considered in the Texas case. It said, however, that it would hold live evidentiary hearings before ruling, since at least one of the judges – Judge Smith – questioned whether the court rely on the D.C. court’s findings in light of the Supreme Court’s post-Shelby Co. order vacating the preclearance decision.
The court did not say when those hearings would be, but gave the parties a list of dates when the court would not be available. Based on those dates, it looks like the most likely date for further hearings would be mid- and/or late August.
I found all this rather confusing, so I left a comment on Michael Li’s Facebook page asking what happens if the court finds for the plaintiff on Section 3, and what happens if not. Here’s his reply:
It is confusing and even the lawyers were confused at times. If the court bails Texas in to preclearance then the 2013 maps would need to be precleared either by DOJ or the San Antonio court. The state would bear the burden of proof and should have to show both a lack of discriminatory intent and effect (same as under section 5). If it can’t do that, the court would draw remedial maps (the Lege also could act but as a practical matter not given the timing and the need to get any Lege drawn map precleared). If the court (or DOJ) preclears the map then the court then would turn to section 2 and constitutional claims.
Make sense? Remember, Section 5 is still in effect. It’s just that the formula for determining who was subject to Section 5 – that is, Section 4 – was thrown out. Section 3 is an alternate method for requiring preclearance, and the plaintiffs argued that the finding by the DC Court of discriminatory intent and effect in the maps means that Texas should be subject to preclearance again, for these purposes. The state argues that since SCOTUS vacated the ruling in which that determination was made, it’s all moot. Even if that happens, the Section 2 claims may still go forward, although that may require starting over with a new court. We’re in uncharted territory here, and as always I expect whatever the court rules to wind up before SCOTUS again. We’ll know more in August.