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A way out on Texas?


Well aware that it must act swiftly, the Supreme Court on Monday pondered two simple ways and one considerably more complex way to let Texas go forward with its 2012 elections for state legislature and Congress, but left open the possibility that Texas’ present election calendar might have to be stretched out.  In a 68-minute argument on three redistricting cases from the Lone Star State, the Justices eagerly explored specific solutions to an unusually tangled controversy, and got into the counting of days open for them to act.

The simplest plan was to let Texas do what it wants — use the redistricting maps its state legislature drew earlier this year, unchanged.  But only Justice Antonin Scalia seemed eager to embrace that approach.  The next most simple plan, and one that seemed likely to get at least grudging support from the two legal combatants, was to let Texas use any part of its maps that have not been specifically challenged in court, and then require it to bear the burden of proving that the overall plan was valid, presumably before it can use the remainder.  It was an idea floated late in the argument by the junior Justice, Elena Kagan.

Potentially more complex was an idea put forth by Justice Anthony M. Kennedy, to take completely out of this case any consideration of Section 5 of the Voting Rights Act, and confine it to direct questions of what parts of the Texas plan violate Section 2 of that Act, violate the Constitution, or violate one-person/one-vote guarantees.   So far, that plan would put the next step up to a federal District Court in San Antonio, whose “interim” maps are under challenge before the Justices by Texas.

The complexity with Kennedy’s musing comes from its very premise — take Section 5 out of this dispute — because that would leave uncertain what happens if Texas fails in a different federal District Court, sitting in Washington, to get any legal approval of its plans.   Since that tribunal seems to be obliged to uphold or block, in its entirety, any uncleared plan, what would be the effect if sound parts were allowed to go forward by the Supreme Court?  There was no answer to that on Monday.

It was not apparent that the Obama Administration was drawing support for its fairly simple alternative: to allow the “interim” maps drawn independently of the state plans by the San Antonio court to be used for the 2012 elections, but with that court required to explain it a bit more.   The Administration lawyer had only a few minutes in the argument (though he was given a few extra) and the approach he suggested drew a negative response from Chief Justice John G. Roberts, Jr.   Saying “we’re all under the gun,” the Chief Justice implied there was no time for further explanations.

These cases have been complex from the very outset, because they involve the two District Courts that are wrestling with legal challenges to the maps drawn by the legislature for the state house, the state senate, and the Texas delegation in the U.S. House of Representatives, those two courts have two different and potentially clashing assignments, and they are trying to stay out of each other’s way.

Supposedly, the San Antonio court, in considering eight separate cases before it, is focusing upon Section 2 and constitutional mandates for redistricting, while the Washington court is focusing primarily upon Section 5, with some of the Section 2 and constitutional issues on the side.   Texas is in the middle because it is one of the states, mostly in the South, that is required to obey Section 5, which applies only to states with a prior history of racial bias in its election systems.  Like all other states, though, it has to also obey Section 2 and the Constitution.

Early in Monday’s argument, Washington attorney Paul D. Clement was at the lectern, arguing for Texas in favor of letting the state use temporarily its state legislature’s three maps because there have been no final court rulings that it is illegal.   Federal courts, he said, have authority to create their own maps only if they find that some part of a state map is illegal.  Justice Kagan, however, said that this line of argument amounted to a requirement that the San Antonio court “try to predict” what the Washington court was going to decide under Section 5, yet the Washington court had sole authority to decide what Section 5 allows or not.

Clement insisted that Texas only was asking the San Antonio court for “temporary relief,” and argued that Section 5 allowed that, applying normal redistricting principles.

Justice Scalia, who would soon make clear that he thought Texas should be allowed to use its maps as a temporary measure (but lasting throughout 2012), reminded Clement that one of Texas’s other arguments was that the San Antonio court had drawn its plans based on a presumption that the challengers’ legal complaints were valid and drew its plans accordingly.  Clement gladly accepted the reminder.

After several of the Court’s more liberal Justices had said, in questioning Clement, that Section 5 barred Texas from using its legislature’s plans until they had gained clearance in the Washington court, Justice Scalia commented to the federal government’s lawyer that “that is not an absolute rule.”  Allowing Texas to use its own maps, the Justice said, would be a “reasonable exception to a non-absolute rule” about the priority of Section 5’s clearance requirements.   There was no indication that any other Justice picked up on that notion.

While the federal lawyer, Principal Deputy Solicitor General Sri Srinivasan, was making his argument, Justice Kennedy said “the problem with this case” was that the San Antonio court was dealing with “a Section 2 suit,” and yet “Section 5 is driving it.”  Section 5, Kennedy went on, puts some states “at a tremendous disadvantage” as they try to defend themselves against a Section 2 lawsuit while they are simultaneously trying to get clearance for their election changes under Section 5.  “Why,” Kennedy wondered, “should Section 5 take precedent in a Section 2 suit.”

Kennedy did not seem content with Srinivasan’s suggestion that, when a state was covered by Section 2, “it can’t help but drive” what a court like the San Antonio court can do even though that court had no authority to rule on the Section 5 aspect of a state election plan.

What Kennedy appeared to be suggesting was that the San Antonio court — the only lower court whose action so far is now before the Justices — should confine itself to Section 2 and leave the Section 5 dispute to the Washington court.  He did concede at one point, however, that there were potential complications with that, because the Washington court also had before it, in addition to Section 5 challenges, some challenges under Section 2 and the Constitution.  As Kennedy mused over the thought, he said, almost inaudibly, “That doesn’t work.”

The minority groups, voters and lawmakers challenging the three Texas redistricting plans had come to the Court to argue that the San Antonio court was right in paying no attention to what the state legislature had drawn up, because that was under challenge in the Section 5 case in Washington.  Their lawyer, Jose Garza of San Antonio, however, soon encountered suggestions by Justices Kagan and Sonia Sotomayor that the San Antonio court should at least have considered to some degree what the legislature had created.  Garza backtracked a bit: “We don’t say it can’t look at them; we say it can’t implement them.”

Much of Garza’s time at the lectern was composed of his attempts to defend the San Antonio court’s “interim” maps, but there was no sign that any Justice was keen on those, even as a starting point.   The more revealing exchanges between the Court and Garza came as his time was winding down.  First, the Justices drew him through a series of dates, against the background of the possibility that Texas might have to delay its 2012 primary elections more than it already has (from March 6 to April 3) in order to accommodate the multiple court proceedings now unfolding.

Justice Samuel A. Alito, Jr., had briefly explored the question of further delay during Clement’s argument, but other Justices took it further with Garza.  Although the San Antonio civil rights lawyer said that the “the drop-dead date” was actually November 6, general election day, the Justices said that could not be so, since there had to be a primary.   The last day it could be held, Garza responded, was June 26.   Backing up from that, he added, the Court had to allowed 135 days for the state to print ballots and distribute them for absentee voters, including overseas military voters.  He then recalculated, and said the state would have to have a primary plan developed by the end of March.

When Garza appeared to be launching into some rhetoric about the “good reason” why Texas is covered by Section 5, and started talking about its history of racial bias in voting, Chief Justice John G. Roberts, Jr., cut him off.  Noting that the constitutionality of Section 5 is not at issue in the case, the Chief Justice appeared to regard Garza’s comment as a potential lead-in to a defense of Section 5 and did not want that explored.  It was the only sign during the argument that the Court may be determined to stay away from that volatile question.

Just before Garza finished, Justice Kagan asked him what he would think about an alternative which would start with the Texas legislature’s maps, allow any part of them to “go forward” if they were “consistent with the law and the Constitution,” but put the burden on the state of Texas to show that its plan is consistent with its legal obligations.   That, said Garza, would be “a much more reasonable approach” than Texas had been seeking, which was to put the burden on the minority groups and voters to show what parts of the Texas plan were invalid.   The Kagan idea, the lawyer finished, “is far more preferable than shifting the burden” to the challengers.

When Clement returned for rebuttal, Justice Scalia asked him to react to the Kagan alternative.   Clement said it would be better than the San Antonio court’s maps.  Before he finished, he suggested that Texas might find some favor in Kennedy’s idea of taking Section 5 out of the San Antonio case, but added that such a move might make complications for how the two District Courts proceeded from here on.

Because the Court has been told that new maps must be in place by February 1, if the presently scheduled April 3 primary is to go forward, the Justices are expected to act quickly, though on no specifically known timetable.  It is conceivable that they could issue a fairly brief order, with an explanation to come in a later opinion.  Both of the two District Courts involved in the Texas cases have taken that very approach.  However, if the outcome the Supreme Court chooses is to include new guidance for the San Antonio court, that presumably could not await the preparation of a later opinion.







Recommended Citation: Lyle Denniston, A way out on Texas?, SCOTUSblog (Jan. 9, 2012, 2:55 PM),