SCOTUS to hear arguments in Texas redistricting on Monday

Posted by AzBlueMeanie:

Keep in mind is that this is an appeal from the maps drafted by a panel of federal judges in Texas for use in the 2012 election. The Voting Rights Act clearance challenge to Texas' redistricting is in the federal district court for the District of Columbia and has yet to go to trial. That is the case in which a challenge to Section 5 preclearance under the Voting Rights Act is most likely.

In one of its filings, Texas has said that “the only real question” before the Court at this time is “what to do now that the need for an ‘interim’ map to govern the 2012 elections has become exigent.” The issue of Section 5′s constitutional validity has been made at least a potential issue in these appeals by other parties, however.

Lyle Denniston writes at SCOTUSblog, Argument preview: Texas, the courts, and minority voters:

The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics.  The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S.  House seats.

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The Section 5 issue arises because Texas, with a prior history of discrimination in voting based on race, is required by that section to get official clearance in Washington for any change it makes in any voting method or procedure — and that includes new districting maps — either from the U.S. Justice Department or from a special three-judge District Court in the nation’s capital.  Texas, in fact, has an ongoing procedure in that District Court, at a trial starting later this month, seeking clearance of the three redistricting maps drawn by its legislature.  Either process is actually called “preclearance,” because a state or local government covered by Section 5 is not supposed to put any election change into actual effect without that official seal of approval.

Most if not all of the state and local governments now covered by Section 5 — that is, some or all of 16 states — are chafing under their Section 5 obligations.  That resentment has been encouraged by the Supreme Court’s decision in 2009, in the case of Northwest Austin Municipal Utility District No. 1 v. Holder, in which Section 5 barely averted a sweeping constitutional challenge while not escaping some sharp criticism within the Court about how far the Section goes to intrude upon the covered states’ sovereign powers and how much out of date its coverage rules may be.

Texas has not questioned — at least not directly to this point — its obligation to seek the “preclearance” that Section 5 requires for its new districting plans, although its lawyers have recently begun intimating in filings in the cases that the constitutional problems the state sees with that provision are definitely lurking in the background of this dispute. The Court, of course, is free to ignore those intimations, since the cases now before the Court do not directly involve Section 5′s constitutionality.

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Texas has said that “the only real question” before the Court at this time is “what to do now that the need for an ‘interim’ map to govern the 2012 elections has become exigent.”

 Assuming, however, that the Court confines its inquiry to that one “real question,” how did that question develop?

While Texas was seeking the legal consent of the District Court in Washington to use its three new redistricting maps, eight separate lawsuits were beginning and moving ahead in a separate, three-judge U.S. District Court, sitting in San Antonio.   Those lawsuits, filed by advocates for minority rights and by one state senator who had voted against the legislature’s new map for the state senate, were based upon another provision of the 1965 Voting Rights Act — Section 2 — and upon the U.S. Constitution.  Section 2, applying to all states in the nation, bars the use of voting methods that discriminate on the basis of either race or membership in a particular language group.  The constitutional claims contend that the state legislature’s maps were the product of racial and partisan political gerrymandering, and violated guarantees of one-person, one-vote equality in redistricting.   Some of the San Antonio cases have been tried, but have not reached a final decision on the challenges; others have been postponed indefinitely.

The San Antonio court has said it would not rule on the legal challenges to any of the plans, while Texas was pursuing preclearance in Washington.  While that proceeding went forward, that court also said, Texas could not implement its redistricting maps.   It then ordered the parties to submit proposals for “interim” plans, to be adopted by the District Court for use on a temporary basis in the 2012 elections.   In November, sometimes by a divided 2-1 vote, the San Antonio court fashioned its own maps for the two houses of the legislature and for the U.S. House delegation.

The court’s plan for the state house redrew the boundaries of 128 of the 150 seats, sometimes dividing cities.  It also created three new “coalition districts,” in which blacks and Hispanic and Asian populations were concentrated in order to give them a chance — as a group — to prevail in the choice of candidates they preferred.  Texas has since complained that, while ignoring the legislature’s maps, the District Court built closely upon the legal complaints of the challengers.

The court-approved plan for the state senate, again following the requests of the challengers, redrew five adjacent districts.   And the court’s plan for the U.S. House delegation altered the boundaries of every one of the 36 Districts that the legislature had drawn.

In none of those court-approved plans, all issued in late November, did the San Antonio court rule that any part of the legislature’s maps was illegal; indeed, that court has continued to insist that it has no authority to judge their validity while the preclearance process is underway in Washington.

Texas asked the San Antonio court to put its “interim” maps on hold while the state pursued a challenge directly in the Supreme Court.  (Redistricting cases bypass the usual route from a District Court to a federal Circuit Court, going instead directly to the Supreme Court for what amounts to mandatory review.)   The Texas court, dividing 2-1, refused to delay its maps.   In a later opinion, it explained more fully why it felt it had no power to allow the use of any of the state legislature’s maps.  Circuit Judge Jerry Smith, sitting as the Circuit member of the three-judge District Court, dissented.  “Unless the Supreme Court enters the fray at once to force a stay or a revision,” Judge Smith wrote, “this litigation is, for all practical purposes, at an end.”

Texas, believing that it confronted the prospect of the 2012 elections going forward under court-approved plans that it deemed without legal foundation, turned to the Supreme Court.

After the District Court had drawn its own “interim” maps, there was still no lower court opinion either in San Antonio or Washington answering any of the legal or constitutional challenges to the legislature’s maps (and, with the case now going to argument in the Supreme Court, there is still no such ruling in the lower courts).  Thus, the ordinary basis for a direct appeal on the merits to the Supreme Court did not yet exist.  The state, therefore, asked the Supreme Court initially only to issue emergency stays of the three court-approved maps, and then to send the cases back to the San Antonio court with an order not to issue any “interim” orders “unless some likely violation of law is found.”   The state also asked the Justices to order the District Court “to defer to the legislatively enacted” maps.

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If the Court were not willing to send the cases back to the District Court, Texas’s lawyers suggested, it could treat the stay applications as formal appeals of the District Court’s “interim” maps and then rule on the scope of the District Court’s authority to devise any alternatives to the state plan in the period while the preclearance process was going on in Washington.

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The state of Texas procedurally got everything it wanted from the Supreme Court … when the Justices on December 9 blocked the District Court’s maps temporarily, treated the stay applications as “jurisdictional statements” (that is, the kind of filings that are used in mandatory appeals on the merits), put the three cases together, set up a briefing schedule, and selected January 9 at 1 p.m. for a one-hour oral argument (later expanded to 70 minutes to include the U.S. Solicitor General, not previously involved in the San Antonio cases).  That fast-tracking put the cases before the Court in the Justices’ first day back on the bench after the midwinter holiday recess.

After the Court put the cases on its docket for review, the San Antonio District Court accepted a compromise agreement between the major political parties in Texas, and postponed the scheduled primary election from March 6 to April 3, with a new runoff date, if necessary, for June 5.  The District Court made clear, though, that the new schedule depended upon having a new set of redistricting maps in place by February 1.

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When Texas filed its merits brief on December 21, it spelled out a single question: “whether, while preclearance remains pending, another district court [separate from the one handling preclearance] may order the use of judicially drawn ‘interim’ electoral maps that give no deference to the state’s duly-enacted maps, are not premised on any actual or likely violation of law, and are based on nothing more than the court’s own notion of sound public policy and ‘the collective public good.’ ”

The brief, however, pushed to the fore Texas’s plea that the Court should order the District Court to put into effect for the 2012 elections the maps as drawn by its state legislature, with no changes.  The basic argument for that plea was that time was now too short to draw up a new set of redistricting maps.  The brief noted the postponement of the primary to April, but also stressed the District Court’s comment that even that schedule could be met only if “usable maps” were in place by February 1 (only about three weeks after the Justices’ January argument).

“It is not at all clear,” Texas argued, “that these exigencies of timing allow for a remand for the Texas court to apply the proper remedial standard and craft yet another batch of interim maps for the upcoming elections.”   Nothing in federal law, the state brief contended, bars a federal court from making emergency use of a state’s election plan “without first obtaining clearance.”  The “interim” use of the legislature’s maps, it said, would not amount to a ruling that Texas need not go forward in the preclearance proceeding in Washington.  But that proceeding, the state emphasized, is focused on what maps were to be used “on a permanent basis.”   The practical effect of this plea, of course, would be that the Texas legislature’s version of all three maps would be used throughout 2012 in the state, through the November 6 general election.

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Specifically, the brief urged the Court also to rule (1) that federal voting rights law does not require proportional representation based on race, and that a state has no duty to maximize voting strength of minorities, (2) that the law does not require states to draw coalition districts in which a group of different minorities together make up a majority, (3) that a District Court must apply traditional redistricting principles, such as not breaking up counties unless that is the only way to avoid a legal violation, and (4) that a District Court must not try to equalize population among state legislative districts unless the deviations in a state plan actually violate the law.

If the Court were to do all of that, it would significantly curtail the power of a three-judge District Court to craft its own set of redistricting maps — at least in the Section 5 context.

* * *

[O]n December 21, four groups of minority advocacy organizations, voters in the state, members of Congress, and state legislators filed their own merits briefs, lambasting Texas’s record on racial bias in its election methods, putting heavy emphasis upon the devastating effect on Section 5 that they argued would result from allowing Texas to put its own maps into effect until they had been precleared in Washington, and eagerly defending the San Antonio court as having done exactly what federal voting rights law requires, and no more.

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One week later, when amici filings were due, the Obama Administration entered the San Antonio branch of the redistricting controversy by filing such a brief, urging the Court not to allow Texas to use the maps drawn up by its legislature. If time is too short, it added, the solution should be to put in place the District Court’s “interim” maps, even though the brief said those plans had some defects, which could be remedied by a remand to the District Court to make some revisions — particularly providing some further support for some of the conclusions it had drawn.

The government brief suggested that nowhere in the Voting Rights Act’s Section 5 was there any place “for allowing any temporary circumvention of the preclearance requirement, much less one of the magnitude [that Texas] seek[s].”   

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Other amici filings included one by eight states that are subject in whole or in part to Section 5.  Some of them, it noted, “have argued elsewhere that Section 5 is unconstitutional,” but these states “take no position on that question in this case.”  All they seek, it added, is that the Court apply Section 5 in a way that “uses a little common sense.”

* * *

The Cato Institute, a libertarian advocacy group, came into the case not supporting either side, and taking no position on the maps either side defends. The Cato brief had a larger goal: urging the Court to reschedule the argument in the case, and take up the fundamental issue of the constitutionality of Section 5 itself.   The 1965 law’s Sections 2 and 5, that brief asserted, are “at a bloody crossroads,” and the path they command leads only into race-based redistricting.  “The Voting Rights Act has served its purpose,” Cato said, “but is now outmoded and unworkable.”

When Texas filed its reply brief, its hesitancy about getting into the profound issue of Section 5′s constitutionality had been put partially aside, and the brief several times cited the Court’s Northwest Austin decision in which Section 5 had barely survived.   Perhaps the Cato brief had provided an opening[.]

* * *

The issue of Section 5′s validity, then, has been made at least a potential issue in these three cases that had seemed, when they reached the Court, to be much narrower in scope.

* * *

If the Supreme Court gets the sense that it must rule in a way that will produce, by February 1, a set of workable redistricting maps for Texas, it will be looking for ways to simplify the case and to avoid dividing the Court as much as possible. Having put the District Court’s orders on hold, there is now no map for any legislative election in the state this year.  The Court must either draft maps of its own, accept — even grudgingly — something that already exists, or find a streamlined way to get the District Court in San Antonio to craft a plan that minimally alters the state’s maps.

* * *

The time constraints, however, would seem definitely to prevent the Court – whatever its most basic inclinations — from going deeply into the workability, or not, of Section 5.   For that reason, there may well be little appetite within the Court, even among Section 5′s critics, to take on at this point the ultimate issue of Section 5′s constitutionality.   The Cato Institute’s suggestion that the Court order the cases re-argued, with the dispute then focusing directly on Section 5′s validity, seems quite unlikely since the Court has grasped the nettle of dealing with the District Court’s “interim” maps.

The focus should be solely on the short-term issue of what to do right now to get new maps in place for the 2012 election.