Analysis

The first major dispute to unfold in the Supreme Court as the wave of legislative redistricting spreads across the Nation following the 2010 Census is centered in Texas, but has implications beyond the Lone Star State.   And, if the Court accepts the boldest suggestion put before it by Texas’s lawyers, the Justices could dive deeply into the redistricting controversy during the current Term.   The core issue is the power of federal courts to second-guess what state legislatures do when they draw new election maps for state legislative seats, and for those in a state’s delegation in the U.S. House of Representatives.

Right now, this dispute is in the hands of Justice Antonin Scalia, in his role as the Circuit Justice for the part of the country that includes Texas — the Fifth Circuit.  So far, he has given no indication when a decision will come, whether he will rule alone or share the duty with his eight colleagues, and whether he will split up the pending Texas cases between the controversies over the Texas state house and state senate, and the controversy over Texas’s expanded congressional delegation.   But the first indications of his or the Court’s reactions may come as early as Monday.

Texas is one of the states that has felt the biggest impact of the population shifts that showed up in the new Census.  Between 2000 and 2010, its population grew by more than one fifth — that is, by 4.2 million.   And much of that population growth — 2.8 million — came in its Hispanic population.   That has meant that the existing election districts for the state legislature were seriously out of date, and violated the basic one-person, one-vote command of the Constitution.  For its House of Representatives delegation, it meant a rise of four seats, to a new total of 36, and serious questions about the capacity of the burgeoning Hispanic population to choose Representatives that it prefers.

Texas’s state legislature in Austin this year drew new election maps for both state legislative chambers, and for the 36 House seats.  In reaction, the Justice Department in Washington, as well as advocacy groups for minorities, have  contended that the legislature intentionally sought to reduce the potential for new influence by Hispanic voters, and to minimize the negative impact of the population shifts on the political prospects for Republicans.

In the three separate cases now awaiting Supreme Court action, the supposed effort to bolster Republican political fortunes (“partisan gerrymandering”) is not at issue, but the alleged effort to minimize Hispanic influence is very much an issue.   One of the complicating factors for the Court, though, is that, so far, no lower court has ruled that any one of the three plans is, in fact, illegal under either the federal Voting Rights Act, or under the Fourteenth Amendment’s guarantee of racial equality.   Both questions are before three-judge U.S. District Courts in San Antonio and in Washington, but neither has yet to rule on the claims of bias.

While those federal cases have moved along, the San Antonio court decided to adopt interim plans for all three, making very extensive changes — for the purposes of the 2012 elections — in the maps drawn by the Texas lawmakers.   On most of its actions, it has split 2-1.  The biggest disputes have come over the court-ordered interim maps for the state house and for the House of Representatives.

Texas’s lawyers, in the three pending applications (11A520, 11A521, and 11A536) have asked Justice Scalia (and, perhaps ultimately, the full Court) to put the court-ordered plans on hold until Texas can challenge them in a full-dress appeal to the Justices.  But the state’s attorneys have gone further: they have suggested that the Court, in addition to issuing a stay of the court plans, turn each of the three applications into formal appeals, and then schedule them for expedited briefing, argument and decision during the current Term.   That alternative suggestion also includes a request that the Justices delay the primary election for state legislators and U.S. Representatives from March until May, to give the Justices time to issue a final ruling.

In the meantime, the state’s lawyers have argued, Texas should be allowed to use the districting maps that the legislature created, with the exception that any specific district that is formally ruled in court to be illegally drawn would have to be recrafted.   That is far preferable for the state, and is much more respectful of its sovereignty, the three applications argue, than the wholesale changes that the San Antonio court made in drawing up its own interim maps “from scratch.”

The San Antonio court’s majority, made up of U.S. District Judges Orlando L. Garcia and Xavier Rodriguez, have said that they had an obligation to draw interim maps because the plans that emerged from the state legislature cannot be used in any form until they get Washington clearance.   Texas is one of the states, mainly in the South, that have a legal duty under the Voting Rights Act’s Section 5 to get any change in voting procedures pre-cleared in Washington — that is, found legal either by the Justice Department or by a three-judge District Court in the capital city under either the Act or the Constitution.  Texas has chosen the option of the three-judge District Court, but the Justice Department is taking part in that case as a critic of some parts of the state plans.

Even as the Washington court reviews the plans, the San Antonio court has before it six cases filed by voters and advocacy organizations contending that the legislature’s plans are illegal and need to be re-drawn.   The San Antonio court, though, has found itself unable to decide any of the issues on the merits, because the Washington court has priority jurisdiction under the Voting Rights Act.

Because of this, the majority laid down its own plans, saying it needed to do so promptly because the period for filing candidates’ papers opened this past Monday, to run through Dec. 15.  Its maps for the state house and for the House delegation have drawn withering criticism by the third member of the San Antonio court, U.S. Circuit Judge Jerry E. Smith.   Some of Judge Smith’s harshest criticisms came late Friday, as the majority issued a new “supplemental opinion” to explain itself more fully, even though the cases are now pending in the Supreme Court.

Judge Smith said the majority was zealous about promulgating “sweeping relief at this interim stage,” and he called that “unseemly at best and downright alarming at worst.”  He accused the majority of writing a new opinion in a “desperate” effort “to lend support for a shaky decision.  We are judges, not advocates.”   The dissenting judge said the majority should have left the matter “in the good hands of the Supreme Court.”

The majority’s new opinion, and Judge Smith’s dissent, can be found here.   (Thanks to Rick Hasen of Election Law Blog for the tip and a link to the new opinion and dissent.)

Texas’s lawyers are relying heavily, in their pleas to the Supreme Court, upon Judge Smith’s dissenting arguments.  The key claim is that the District Court did not have the authority to cast aside, for purposes of interim action, all of the state legislature’s maps.  And the key authority they cite for that proposition is the Supreme Court’s 1982 decision in Upham v. Seamon.   The state’s lawyers, and Judge Smith, interpret that decision to mean that any court undertaking to impose its own redistricting plan as a remedy for violation of federal law is required to defer, as much as it can, to the choices made by the state legislature.   That precedent, the argument goes, makes it clear that the San Antonio court should have deferred to the state legislature’s plans, for use in the 2012 elections, unless it first found specific violations for specific districts within that plan.   Having not yet ruled any specific district to be illegal, the argument continues, the District Court should have embraced as much of the state legislature’s maps as it could unless it could first establish an actual violation.

A court-ordered plan, for a state like Texas under the Voting Rights Act, does not have to be pre-cleared in Washington before it can be used.  But the San Antonio court’s majority said it is definite and plain that Texas cannot use any part of its legislature’s plans, for either state legislature or the U.S. House, until it has clearance from Washington.

Even though the three Texas cases arise in the context of the pre-clearance requirement for states in Texas’s position under the Voting Rights Act’s Section 5, the potential impact of a ruling in the cases could provide new guidance that would shape the authority of federal courts to craft interim plans any time a new state legislature’s maps come under challenge in court, and an election in the state looms imminently.

Posted in Perry v. Perez, Perry v. Davis, Perry v. Perez, Analysis, Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, What’s at stake in Texas election cases, SCOTUSblog (Dec. 4, 2011, 12:57 AM), http://www.scotusblog.com/2011/12/whats-at-stake-in-texas-election-cases/