NOTE TO READERS: All briefs have now been filed in the Texas redistricting cases.  The following post has been updated to incorporate material from the briefs.  There are five briefs in all — one for the state of Texas, and four from groups opposing the state legislature’s maps.

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Arguing that time is too short to draw up new redistricting maps for election of Texas’s state and congressional legislators in 2012, the state of Texas on Wednesday urged the Supreme Court to put into effect for next year the maps drawn up by the state legislature, even though their legality has not been settled in two pending lower court cases.  The state’s brief on the merits in three redistricting cases before the Court is here (including an appendix).  At issue are the districts for which voters will choose members of the state house, the state senate, and Texas’s 36 members of the U.S. House of Representatives.  The Court, hearing the cases on an expedited schedule, will hold oral argument Jan. 9.

The state’s brief continues the bold maneuvering that its lawyers have been pursuing in the Supreme Court since they took the issue to the Justices late last month.  The Court’s final decision on the case thus raises the clear possibility that the Court may well issue a ruling of profound importance on the meaning of the federal Voting Rights Act provisions that require states with prior histories of race bias in voting to get new election methods cleared first in Washington before being put into effect.

The state noted that a U.S. District Court in San Antonio has already delayed the primary election in Texas from March 6 to April 3, and argued that “candidates, voters, political parties and state officials [are] in desperate need of guidance about the precise contours under which those elections will be held.”   In order to meet even the delayed schedule, the state said, “usable maps must be in place by February 1, 2012… It is not at all clear 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.”

Conceding that a remedy under the circumstances was “less than straightforward,” the state said that the Justices should nullify the “interim” election maps the San Antonio court adopted recently.  The District Court should then be ordered “to impose Texas’ legislatively enacted map as the interim plan” while the legality of those districts are being reviewed in a second U.S. District Court, sitting in Washington, D.C.   Both the Washington and San Antonio courts are hearing challenges to the legislature’s maps by minority groups, under the federal Voting Rights Act of 1965.   The Justice Department is also involved in its own challenge in the Washington court, which has scheduled a trial to start in January.
The state contended that nothing in federal voting rights law bars a federal court from making emergency use of a state’s election plan “without first obtaining preclearance.”  Under the Voting Rights Act’s Section 5, a number of states, mostly in the South, are required to get every change they make in election law approved by the federal District Court in Washington or by the Justice Department, before such changes may be implemented.

If the Court were to put the legislature’s maps into effect now, the state’s brief said, nothing in such a ruling “would relieve Texas of its undisputed obligation to obtain preclearance before implementing its new maps on a permanent basis.”    The practical effect, though, would be that the state’s maps would be used both in the coming Texas primary elections, in any runoff election (now set for June 5), and in the general election on November 6.

Before the Supreme Court on December 9 blocked the “interim” maps drawn by the San Antonio court, those were the maps that Texas would have had to use throughout the 2012 election cycle.   Those court-crafted maps gave some advantage to Democratic candidates and to Hispanic voters than they would not have under the state legislature’s maps.

Because of the procedure used to put the three redistricting cases before the Supreme Court did not previously require the state to spell out the legal issue it wanted the Justices to decide, the state’s briefs spells that out for the first time.  Here is the question it presented: “Whether, while preclearance remains pending [in the Washington court], another district court 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.’ ”

If the Justices now adopt the state’s maps, the Texas brief said, they also should go further and “provide additional guidance for the district court to ensure that it does not make the same errors on remand.”

The brief asked the Court explicitly to reaffirm a federal court’s obligation to defer to a state’s plans, to order the lower court to use principles of equity in deciding which maps to use, to rule that nothing in the Voting Rights Act “requires proportional representation on the basis of race,” to rule that a state’s failure “to maximize the voting strength of minority groups does not violate” the Act, to rule that nothing in the Act requires a state to draw “coalition districts’ in which several minority groups make up a population majority, to make clear that the federal courts “may not depart from traditional districting principles” such as not breaking county lines “unless that departure is the only way to address an actual or likely violation of law,” and to “clarify that the district court cannot seek to equalize population among state legislative districts unless the population deviations in the legislative enacted map violate the law.”

Responding to the Texas appeal, four separate briefs were filed by groups and individuals, including some African-American members of Congress from Texas, that are challenging the legality of the maps prepared by the state legislature.   The brief of the members of Congress and the state NAACP, defending the San Antonio court’s “interim” map for the 36 congressional districts, is here.  That brief argues that the court’s map for the House of Representatives seats did not make excessive use of race as a controlling factor in setting the new boundaries. Another brief defending the court’s congressional map was filed by a coalition of advocacy groups; it is here.  The brief of a redistricting task force of challengers to both the state legislative and congressional maps drawn by the legislature is here.   The brief of the League of United Latin American Citizens, defending the new districts for the state senate that take account of the state’s rapidly expanding Hispanic population, is here.

Each of those four briefs argued that there is no basis in the Voting Rights Act for the state to be allowed to use the legislature’s redistricting maps, until they have won preclearance in the Washington court.   They also contended that the court-approved plans that the Justices put on hold were a valid exercise — and a necessary one — of the San Antonio court’s authority while awaiting the outcome of the preclearance case in Washington.

When the Justices took on the three cases, they ordered the two sides to file their merits briefs simultaneously, today.   The parties are to file their reply briefs on January 3, six days before the Court’s oral argument is set for the afternoon of the Court’s first day on the bench following the holiday recess.

 

 

 

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

Recommended Citation: Lyle Denniston, Texas pushes its election maps, SCOTUSblog (Dec. 21, 2011, 3:27 PM), http://www.scotusblog.com/2011/12/texas-pushes-its-election-map/