UPDATED Sunday, 10:30 p.m.   The U.S. District Court in San Antonio, moving ahead without waiting for any further orders from the Supreme Court, has scheduled a status conference for Tuesday morning.  The parties are to go over how the state’s candidate-filing deadline is to be modified, or kept intact, and other issues on the conduct of the 2012 elections.  The District Court’s order is here.  The order did not mention the Supreme Court’s Friday order taking on the case, but that undoubtedly prompted the lower court’s action aimed at catching up with developments and, apparently, to move on.

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Analysis

The Supreme Court’s move on Friday night into the midst of the political and legal turmoil over how Texas is going to run its elections next year very likely will add to the uncertainty, rather than sorting things out, at least in the short term.   The Court became the third tribunal to take on a piece of the controversy over how Texas is to divide up its election districts for the elections in 2012 of members of its state legislature and its 36-seat delegation in the U.S. House of Representatives.   Normally, it might be expected that the other two courts will now step aside, and leave matters to the Justices, at least temporarily.  But that is now in some doubt.

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.   When the Supreme Court blocked the temporary redistricting maps fashioned by the San Antonio court as “interim” substitutes for the state legislature’s maps, that raised a question whether that court can do anything further in coming weeks.   The D.C court, though, was not directly involved in the cases that the Supreme Court will be reviewing, but it can hardly expect not to be affected as the Justices move ahead.  That court, though, 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 that 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 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 District 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 clearance 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.

The San Antonio court had been drawn into the fray when six lawsuits were filed, mainly by minority groups, claiming that the maps drawn by the state legislature are illegal under another provision of federal voting rights law — Section 2.   That bars any state (not just those covered by the pre-clearance requirement of Section 5) from adopting a new election law or procedure that reduces the chances that minority voters previously had to elect officials of their own preference.   Those lawsuits contended that the Texas legislature did, in fact, adopt new election districts that result in dilution of minorities’ voting strength in violation of Section 2.

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 request by the Justice Department has introduced a new complexity into the election controversy and into the Washington case specifically.   In asking that the case be “held in abeyance” for the time being, the Department noted that the San Antonio court was then in the process of drawing up “interim” maps for the legislature and the House of Representatives delegation.   Those “interim” maps, the Department suggested, would then become the “new benchmark” for the Washington court to use in determining whether the Texas legislature’s plans at issue in this case meet the pre-clearance requirements of Section 5.

Under federal voting rights law, before a new election map’s legality can be judged, a court has to figure out what to measure those maps against — in other words, what is the “benchmark plan” to which the new maps are to be compared, to see if the later districting discriminates against minority voters.    The state of Texas promptly objected, in the Washington court, to the idea that the “interim” districts would be used as the “benchmark” plans.   The state responded on this point shortly after taking its complaint about the “interim” plans to the Supreme Court, and it told the Washington District Court that the “interim” plans were themselves illegal.   Moreover, it said, those plans were not in existence when the legislature earlier this year drew new districting maps, so it had no way of judging whether its plans would deviate from a yet-to-exist set of court-ordered maps.

Texas then urged the Washington court to move promptly to reach a ruling on the clearance question, so that Texas could move ahead with the election calendar for the 2012 elections.  “Absent an expeditious ruling, the citizens of Texas,” it said in that court, “may very well be forced to hold elections under legally flawed plans.”

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.   Both sides are to file their opening briefs on that point on December 21, with replies by both sides due on January 3.  (An oral argument is set for the afternoon of January 9.)

In the meantime, there has been no interruption — yet — of a period during which candidates for the legislature and for the House of Representatives are to file their candidacy papers.  The filing period opened November 28 and is now scheduled to run through next Thursday.   Unless some court issues a further order on this filing period, uncertainty will remain as to which districts the candidates should be filing to represent.

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.

 

Posted in Perry v. Perez, Perry v. Davis, Perry v. Perez, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Texas voting in 2012: A three-court puzzle (UPDATED), SCOTUSblog (Dec. 11, 2011, 1:01 AM), http://www.scotusblog.com/2011/12/texas-voting-in-2012-a-three-court-puzzle/