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Some Texas election plans gel

The political wars in Texas over new election districts for legislators at the state level and in Congress were suspended long enough to work out a partial schedule on candidates’ filing, while everyone awaits some clarity from the Supreme Court, perhaps early next year.  In a scheduling order issued Wednesday, a three-judge U.S. District Court in San Antonio endorsed an agreement among all parties to give candidates some additional time to file their papers to run, and it also promised to reopen the filing period later when the situation is sorted out.  Candidates will not be penalized for guessing wrong in their filing about what district they are seeking to represent.

One issue the order left open, however, was whether to change the primary date, now set for March 6 for all offices up for election next year, state and federal, including the Presidency.  Presumably, the date — or dates — for primary voting can only be worked out after the Supreme Court decides the three cases before it in the redistricting controversy.   The parties hold varying positions on whether the state should be ordered to hold one or two primary elections, in view of the legal fight over which are the proper and legal districting maps to govern elections for seats in the state house, the state senate, and the Texas delegation in the U.S. House of Representatives.  The state’s GOP factions are themselves divided on the issue.  Most of the members of the state’s present House of Representatives delegation, of both parties, urged the court this week to hold just one primary election.

Earlier, when Texas’s own lawyers took the dispute on to the Supreme Court, they asked the Justices to put off the primary only for the legislative districts, a move that would mean two separate primaries in the spring..   But the Justices made no mention of that in granting review of the cases and putting on hold temporarily the San Antonio court’s own “interim” maps for use during the 2012 election cycle.

The Justices have not yet spelled out on their own, and the lawyers for the state of Texas also have not yet spelled out, just which legal issues the Supreme Court will be deciding.   The array of issues is expected be clarified when the state files its opening brief on the merits a week from today.   It does not appear — at least at this point — that the Supreme Court will go ahead and lay out redistricting maps of its own for any of the legislative seats up for election in 2012, but it probably will be giving guidance on how such a map is to be put together by lower courts.

The Supreme Court’s intervention seemed likely to temporarily stall the processing of the lawsuits over new districts that are pending in two lower courts — the District Court in San Antonio, and a separate District Court in Washington, D.C.   But neither of those courts chose to remain idle while awaiting final Supreme Court action on the controversy.   The San Antonio court, with Wednesday’s order, gave candidates guidance on when and how they could file even while not knowing which districting maps ultimately will control.  The Washington court has scheduled a trial to begin January 17 in that case.

One of the highly unusual things about the Texas redistricting fight is that, so far, no court at any level has issued a final ruling on whether the state legislative and congressional redistricting plans drawn up by the state legislature earlier this year are legal, or not.   The legality of those maps — one for each of the chambers of the legislature in Austin, and a separate one for the U.S. House delegation — is at issue under two different sections of the Voting Rights Act.  The two District Courts have separate jurisdiction over those two VRA sections — Section 2, in San Antonio, and Section 5, in Washington.

The timing will be tight for all three courts, even if they are prepared ultimately to require major changes in the election scheduling for Texas in 2012.   The Supreme Court is to hold oral argument on January 9 on its part in the controversy, the San Antonio court is to hold a meeting with lawyers in the case on January 12 to work on an election schedule, and the Washington court is to open the trial there on January 17.   The Supreme Court would have to act with extraordinary speed, after its January 9 hearing, in order to have some guidance for the lower courts just a few days after that.

And all three of the courts will have to move with real speed, unless they opt to postpone the Texas primary elections from the presently scheduled March 6 date.

In the meantime, the San Antonio court’s scheduling order issued Wednesday kept open the candidate filing period (previously scheduled to end tomorrow) until 6 p.m. on Monday, December 19.   It said it would reopen the filing period “at a later date” — presumably, when some clarity on which districting maps are to be used has emerged.   As the filing continues, candidates are to tell registering officials their “lawful residence” and spell out “the district he or she believes” they will be seeking to represent in the legislature or in Congress, to be amended during the later, reopened filing period — again, presuming some clarity has by then emerged.

In agreeing to this much, the combatants in the redistricting fight did not surrender the positions they had previously taken about the conduct of the upcoming election.   When they came together on the schedule the District Court has now adopted, they also notified the three-judge panel on that court that they had not been able to agree on when county officials were to send out registration cards to voters.   Resolving that issue, they said, might depend upon agreement on an election schedule, and, they said, “the political parties cannot reach agreement at this time” on such a schedule.



Recommended Citation: Lyle Denniston, Some Texas election plans gel, SCOTUSblog (Dec. 14, 2011, 10:01 PM),