U.S. Supreme Court to review Texas redistricting maps

Posted by AzBlueMeanie:

I have a deep sense of foreboding about the U.S. Supreme Court's decision on Friday to accept review of the federal court drawn redistricting maps from Texas. In the Court's last Voting Rights Act case, while the Court upheld the law, in dicta it suggested that it might reconsider in the future, essentially inviting future appeals. Alabama, Arizona and Texas — real stalwarts of civil rights (that's sarcasm folks) — have accepted the Court's invitation.

Texas will get the first bite at the apple. These particular cases will have to await the D.C. District Court ruling on Voting Rights Act issues for appellate procedure reasons.

On Friday, the U.S. Supreme agreed to rule on the constitutionality of three redistricting plans drawn up by a federal court for the two houses of the Texas legislature and its 36-member U.S. House of Representatives delegation, and put those court-ordered maps on hold temporarily. Texas election maps blocked, for now : SCOTUSblog:

The Court called for expedited briefing [briefs from both sides due on December 21, reply briefs on January 3], and set [oral argument] 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 U.S. District Court’s interim maps, which were crafted for use in the 2012 election cycle.  The Court’s order is here. [The Court’s order makes no reference to amici filings in the cases.]

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 interim 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 filing to run in the 2012 primary, now set for March 6. The filing deadline remains December 15 for now, though there are now no legislative or congressional districts for which to file. it appears unlikely that the primaries for state house, senate, and congressional races can occur on March 6 due to the delay of this litigation.

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.

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Stay applications such as the ones that put these cases before the Court are usually only for temporary remedies, and, most often, seek simply to maintain the status quo while the underlying decision at issue is reviewed.   The Court, this time, converted the applications into what it calls “jurisdictional statements,” which is the label it uses for cases that are appealed directly to the Justices from a three-judge District Court.   Federal law provides that challenges to redistricting cases are to be heard initially by three-judge District Courts, with direct appeals to the Supreme Court, bypassing the usual transit through a federal Circuit Court of Appeals.

By granting review, the Court, of course, gave no indication of how it would rule on the constitutionality of the District Court’s interim plans.   But the Court appeared to have taken seriously and heard perhaps somewhat sympathetically the Texas lawyers’ argument that a 1982 Supreme Court precedent — Upham, et al., v. Seamon, et al. — strictly limits the power of a federal court to craft its own interim redistricting plan that deviates greatly from one drafted by a state legislature.

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Because the three cases reached the Justices as stay applications, they did not spell out specifically the legal or constitutional questions being laid before the Court.  But it does appear, at least at this stage, that the Court will only be ruling on the validity of the San Antonio court’s decision to draw up interim maps of its own.  No lower court has yet ruled on the underlying question of whether any of the districts — for the legislature or for the House delegation — actually violate federal law or the Constitution.

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While Friday’s order seems to put a hold on further proceedings in the San Antonio court’s review of the Texas legislature’s three maps, there was nothing in the order that would appear to have any effect on the continuing review of the validity of those plans by the District Court sitting in Washington.   The Justice Department is taking part in the Washington case, and is making significant challenges there to the maps the legislature drew for the Texas house and for the House of Representatives delegations.   Those maps, as well as the one for the Texas state senate, are also under broad challenge in the Washington case by minority and civil rights groups.

The challengers contend that the legislature drew the maps in order to minimize the impact of population shifts since 2000 on the election prospects of Republican candidates, and to reduce the voting influence of the state’s rapidly growing Hispanic population.   Since 2000, the state’s population grew by more than one fifth — by 4.2 million — and 2.8 million of that growth came among Hispanics.   That made the state legislature districts seriously out of date, and led to an increase of four in the state’s House of Representatives delegation, to a total of 36.

The U.S. Supreme Court's action creates a "three court puzzle" for Texas redistricting. Texas voting in 2012: A three-court puzzle : SCOTUSblog:

The three-court puzzle involves, in addition to the Supreme Court, two District Courts — one sitting in San Antonio, the other in Washington, D.C.   The two lower courts have different tasks, but their actions have lately been overlapping; both have the authority to affect the choices that Texas’s voters will have when they go to the polls — first in March, if the present primary date still holds, and then in November, at the general election.

Now, however, the San Antonio District Court may find itself stymied by the Supreme Court’s action on Friday.    For the District Court in Washington, D.C., it  already has before it a suggestion by the Justice Department that it take no further action until after the Supreme Court decides what it is going to do, but Texas is resisting that plea. [The Washington court has yet to act on the request by the Justice Department — opposed by the state of Texas — to put that proceeding on hold while the Supreme Court is involved.]

* * *

[The D.C. Court] was busy with its own tasks last week, and has scheduled further activity for next week.   It is aware that the Supreme Court has been drawn into the fray, but so far it has shown no sign of stepping aside.   One of the three-judges on that court is set to confer by telephone with lawyers in the case on Monday afternoon, and may get an update then on where things stand, not only in that court, but also in the two others now involved.

As if the current situation were not complex enough, the state of Texas’s lawyers are pondering the possibility that they will file a new challenge in the D.C. court, claiming that a key section of federal civil rights law — known as Section 5 — is unconstitutional because it interferes too greatly with states’ control over their own election systems.   Indeed, much of Texas’s legal complaint about what the courts have been doing up to now with its redistricting efforts is based upon claims that Texas’s sovereignty as a state is being seriously eroded, and tbat the state is actually threatened with loss to the judiciary of control of its own election processes.

Section 5 figures very prominently in what all three of the courts now involved will be doing as the Texas’s cases unfold further, and a fresh constitutional challenge to that provision will only add a new layer of uncertainty, at least in the proceedings in the D.C. District Court.

All of this complexity stems, in large part, from the fact that Texas cannot put into effect any change in its election system — including any new redistricting plans — until they have been given legal clearance in Washington.   The states that have that obligation are required by Section 5 to submit any election change to the Justice Department or to the District Court in Washington.   Texas has chosen to go the judicial route, but its efforts to get a summary ruling, without a full-scale trial, were rejected by the Distrct Court last month and the case has since been proceeding toward a trial.  Both sides have accused each other of dragging their feet in that proceeding.

When it turned down a plea for a ruling without a trial, the Washington court said that, if it were to deny clearance to any one of the plans drafted by the Texas legislature, it would be up to the San Antonio court to “designate a substitute interim plan for the 2012 election by the end of November.”   In response, that is exactly what the San Antonio did late last month, but Texas then challenged the “interim” maps that resulted, and those are what are now on hold pending Supreme Court review of their validity.  The San Antonio court acted without waiting for the Washington court to act on the clesrance requirement. The San Antonio court said it had to act, because it could not allow Texas to use the state legislature’s maps until they had won clearance in Washington.

* * *

Last Wednesday — two days before the Supreme Court was to block the “interim” plans of the San Antonio court — the Washington court ordered lawyers to file new briefs in that court “on the question of the appropriate benchmark plans in this case.”   The Justice Department and the private challengers are to file their briefs on that point by 5 p.m. Monday, with the state of Texas to reply by 5 p.m. Wednesday.

While that development is unfolding, the Supreme Court apparently will not be taking any further action as it awaits the filing of the first briefs in the cases pending before the Justices on the legality of the San Antonio court’s “interim” maps.  

* * *

A further complicating factor is that all of these developments are moving very rapidly, and the calendar moves on in the election cycle with no imminent resolution in sight in any of the three pending proceedings in the three different courts.   The fact is that three courts are moving the cases along but not one of them so far has found that the state legislature’s maps for the legislative and congressional districts  are illegal, under any part of the federal Voting Rights Act.  That issue hangs over all three proceedings.

What happens with Texas will impact Arizona. It appears that whatever the Arizona Independent Redistricting Commission (AIRC) proposes as redrawn maps will be challenged in court by the GOP's FAIR Trust lawyers/lobbyists. Arizona, unlike Texas, cannot opt for the judicial route to preclearance. The AIRC is in charge of that process and will submit its redrawn maps for preclearance to the U.S. Justice Department. One would think the GOP would file its legal challenges to the redrawn maps only after DOJ preclearance, but after the way the GOP has so thoroughly bungled its assault on the AIRC over the past year, who knows?

The only thing that is certain is that the GOP has shown its hand that it wants to delay the effective date of the new legislative district map through litigation. The congressional map has to be in place for the 2012 election. The litigation delay is aimed at continuing the current legislative district map in 2012, as occurred in 2002 due to ongoing litigation (new legislative district maps did not go into effect until 2004).