Posted on November 27, 2011 at 8:09 am by Lyle Denniston
Texas’s lawyers will ask the Supreme Court on Monday to delay the implementation of a new redistricting plan for the two chambers of the state’s legislature — a plan drawn up by a three-judge federal District Court for use temporarily as election season begins. State Attorney General Greg Abbott announced Saturday that his office will seek an emergency order to postpone a plan that state officials contend goes far beyond a federal court’s authority to redistrict on an interim basis.
Rewriting Texas’ state legislative districts, as well as its delegation in the U.S. House of Representatives, has become a major issue because of a sharp growth in the state’s population — shown in the latest federal census — with most of the growth among the Hispanic population. That implicates two parts of the federal Voting Rights Act — Section 2, protecting minorities against a reduction in their voting strength, and Section 5, requiring Texas to get federal preclearance for any change in its voting laws. The three-judge District Court in San Antonio has been faced with drawing interim plans on both the state level and for the U.S. House delegation.
State officials are opposed to both interim plans laid down by the District Court, but at this point, the attorney general said, he will be asking the Supreme Court only to stay the interim plan for the state house and state senate. He has indicated that he may later seek a delay by the Supreme Court in the congressional plan, too. (After the 2010 census, Texas’s delegation in the U.S. House grew by four seats, to a total of 36.)
Candidates for election in the state in the 2012 cycle must start filing their candidacies on Monday. Thus, the state will be seeking a delay in the court-ordered redistricting plans so that candidates may file under the new plans drawn up by the Texas legislature, but displaced on an interim basis by the District Court’s maps.
Texas is one of the states that, because of a past record of racial discrimination in voting, is required by the Voting Rights Act’s Section 5 to get approval for any change in voting — including a rearrangement of election districts — from a three-judge federal court in Washington or from the Justice Department. Texas has submitted the new state plan crafted by its legislature to the three-judge court, but that court has not yet ruled on its validity. In the interim, the separate three-judge District Court in Texas was asked to step in to assure that Texas would not use a plan that had not been precleared or the pre-census districts that are now invalid because of population shifts over the past decade.
In 2000, Texas’s population was 20,851,820. By 2010, the new census showed, it had swelled by nearly 21 percent – to 25,145,561. In that period, the Hispanic population grew by 2.8 million, the African-American population by 522,570, and the white population by less than 465,000. As a result, the prior state house and senate seating plan, as well as that for the U.S. House delegation, no longer reflected the comparative voting strengths or locations of the state’s minorities.
The three-judge federal court in San Antonio last week adopted an interim plan for the state legislature that increases the chances that minorities will be able to control more election outcomes, to the likely advantage of Democratic candidates.
That court divided, 2-1, in refusing state officials’ request to postpone the court-approved plan for the state house and state senate. The order denying a stay of the state house plan is here; a nearly identically worded denial order for the state senate is here.
The majority stressed that it was not ruling on any of the legal issues involved, but merely establishing a plan for use until the legality of the new plan drawn up by the state legislature could be tested. The majority said it had a duty to write a temporary plan because the new plan devised by the state legislature was not enforceable while the pre-clearance review was going on in Washington.
The majority said that the state had been insisting that the federal court was obliged to adopt the legislature’s new plan, except for remedying only very specific violations of federal law. The court, it concluded, could not put into effect a plan not yet cleared in Washington. Its interim plan will give the state an enforceable one as candidate registration begins, it said.
The dissenting judge argued that, because Texas’s election calendar starts so soon, there is plenty of time for the three-judge court to consider the weighty issues about its authority to adopt an interim plan that makes very significant changes in districts across the state. “There are myriad issues to be decided regarding interim, court-ordered redistricting plans,” the dissenting judge said, so the District Court should not put into effect its own plan until those are considered.
The state attorney general indicated in his press release on Saturday that he will be relying heavily upon the dissenting judge’s views in asking the Supreme Court for an emergency stay of the court-approved plan for the legislature.
(The blog thanks Rick Hasen of Election Law Blog for his alert on these developments.)