Texas cases to be heard March 1
on Dec 12, 2005 at 6:59 pm
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.
