Texas cases to be heard March 1
The Supreme Court has tentatively settled on Wednesday, March 1, in an afternoon session, for the two-hour hearing on the four cases testing the validity of the 2003 Texas congressional redistricting plan, according to individuals informed of the Court’s planning.
The Court has put out no formal announcement of that date, presumably because counsel in the case were still discussing with the Clerk’s office a briefing schedule leading up to an argument date. (Rick Hasen, at Election Law blog, reports: “Apparently the Court has expedited the briefing schedule [opening brief 1/10; state’s brief 2/1; reply 2/22] and set argument for March 1.”
No spaces are open in the March calendar for a morning hearing; all those hearing slots have been assigned for weeks. But there are no scheduled cases for any afternoon sitting in March or April, so the Texas cases could be put on after a lunch break. A date at the opening of March, of course, would give the Court additional time before the Term ends to consider its decision following the hearing. The Texas cases are quite complex.
In the morning session March 1, the Court will be hearing an important case on the constitutionaltiy of state investment tax credits to spur economic development (docket numbers 04-1704 and 04-1724), and a challenge to sovereign immunity of a county government to an admiral lawsuit (04-1618).
A closer analysis than was available earlier in the day Monday of the questions the Court will be hearing in the Texas cases suggests strongly that the Court is seeking to refine its review of so-called “mid-decade redistricting.” That is the question of whether a state, once it had a lawful congressional boundary lines plan in effect, can adopt a replacement plan before there is a new ten-year national Census.
That question, of course, involves both the broader question of whether mid-decade redistricting is ever allowed constitutionally, when a valid plan is already in effect, and the more particularized question of whether mid-decade redistricting is allowed when it is done for purely partisan purposes.
In one of the two cases the Court did not agree to hear — docket 04-10649, Henderson v. Perry – the broader question is the only one raised. The Court was asked in that case to decide whether, once a valid map had been ordered by a federal court, congressional boundaries could be changed before a new Census “in the absence of any substantial shift in population, a politicallly neutral change in circumstances, or some other event evincing a legitimate regulatory purpose?” Equally broadly, the case of Lee v. Perry (05-460) — also not granted — raised the question of whether the Constitution’s “silence” allows a state “to engage in repeated reapportionment (more than every ten years).”
By contrast, one of the granted cases, Jackson v. Perry (05-276), for example, asked whether it violates the Constitution for a state to redraw “lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage.” (emphasis added) Other granted cases phrase that issue in a similarly refined form.
As suggested in an earlier post, below, the Court may decide the Texas cases finally on some ground other than partisan gerrymandering, since it will be hearing a series of other questions dealing with racial and ethnic voter equality and vote dilution.
While it appears the Supreme Court opts to allow very narrow argument, there are numerous impactful related events that probably drew the Justices into curiosity about the particulars. The one-person, one-vote, standard was the topic of the Department of Justice’s suppressed unanimous 73-page memo favoring complainants, this memo having surfaced only last week; and rumor had it the governor dispatched state gendarmes to arrest some complainant senators at the court in Laredo and bring them forcibly into the chamber of the senate in order to attain quorum and, thence, obtain a majority rule to change chamber redistricting supermajority requirement to a simple majority to redistrict; we recall ten senators were in exile out of state for four weeks to deprive the TX senate of quorum. Sen. Whitmire returned to the chamber of his own volition ending the exile standoff hours before the arrest could occur in Laredo. Of course, there are still undecided campaign finance questions involving the subsequent election. But the middecenium redistrict was recently defeated in a CA initiative; so SCOTUS would like to address the political strategy now to obviate the need to face it later. And the enumerated strange events surrounding the TX redistrict all tend to magnify some overall sense of hyperpoliticization of the gerrymander process. Even given the history of both Chief Justice Roberts and nominee-Justice Alito having opposed the TX redistrict complaints prior, the case as heard in April 2006 argument should prove an interesting test of the mettle of the newly configured bench on the Supreme Court. I appreciate Mr. Denniston’s careful assessment of the decision today to hear the TX case.
Comment by JohnL — December 12, 2005 @ 8:03 pm
As this was an appeal from a three-judge district court, the Supreme Court’s only options were to schedule a hearing or to rule on the merits summarily. (There is no denial of cert. in such a case.)
Rick Hasen speculates on his blog that a per curiam was in the works, but whoever was writing that opinion lost his/her majority. Since the Court didn’t ask Texas for a response, the most likely scenario is that there were five votes to affirm. (The Court would be highly unlikely to summarily reverse without giving the losing party a chance to be heard.)
I am not sure whether any of the background info mentioned in the preceding post is formally before the court. It is interesting to know that the Justice Department’s professional staffers opposed the plan. However, the Department’s official response was an approval. Legally, that’s what counts.
Comment by Marc Shepherd — December 13, 2005 @ 11:49 am