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Two primaries in Texas?

Moving to carry out a Supreme Court mandate to reconsider legislative redistricting maps for Texas this year, a federal District Court in San Antonio on Monday raised the possibility that the state may have to hold two primary elections — one for presidential nominating delegates in April, and one for state legislators and members of Congress later.  That is one option lawyers were told to discuss when they assemble this Friday afternoon to react to the Supreme Court’s ruling last week.   The lawyers also were asked to try to help coordinate the work of two District Courts that are pondering separate challenges to the maps drawn up last year by the Texas legislature.

Immediately after the Supreme Court last Friday ordered the three-judge panel in San Antonio to use the state’s maps as a “starting point” in deciding which election districts may be used this year, the court in Texas indicated it would not move ahead until February 1 at the earliest.  But the state of Texas objected, leading that court to move up its schedule and to issue on Monday a detailed set of instructions on what it expected lawyers to do to help it get a redistricting plan in place.  It no longer expects to be able to do that by the end of this month, the new order indicated.

If the lawyers want to try to hold to the present April 3 schedule for a single primary election for the presidential delegates and for the state house, the state senate, and the 36 members Texas will have in the U.S. House of Representatives, the District Court said, the two sides should try to agree on a new set of maps by February 6.  If they can’t agree, the order said, they are then to tell the court which specific districts under the state legislature’s plans can be used without objection.

But, the order went on, the District Court “is giving serious consideration to whether a so-called ‘split primary’ will be required because of the legal requirements and practical logistics of the 2012 election cycle.”  While it said it is aware of the added expense this would mean, it suggested that the state of Texas might consider whether it legally could reimburse Texas counties and the political parties for that added outlay.

The idea of two primaries, the order made clear, is due to the special complication in the Texas redistricting controversy that two courts — the one in San Antonio, and a separate District Court sitting in Washington, D.C. — are proceeding simultaneously to consider legal challenges to the maps created by the state legislature.   Many of the same lawyers are involved in both cases; this week and last, the lawyers were in Washington for a trial on whether the Texas maps are illegal under Section 5 of the Voting Rights Act of 1965.  Texas is one of the states that, as a result of Section 5, cannot put any new election law into effect until after it is legally cleared in Washington.

The San Antonio court is reviewing whether the Texas maps are illegal under another part of the Voting Rights Act — Section 2 — and under the U.S. Constitution.

Although the Washington court has exclusive power to decide the Section 5 issue, the Supreme Court last week told the San Antonio court to try to figure out just how the Washington court might rule on Section 5 so that the Texas court does not go ahead and put into effect a redistricting plan that would not be likely to gain clearance in Washington.

In a highly unusual request in Monday’s order, the San Antonio court urged the lawyers to ask the Washington court to rule on the Section 5 issue “in time for this court to incorporate those decisions into its ultimate decision on the redistricting plans for the 2012 elections.”   If that were to occur, then the San Antonio court would not have to engage in a prediction about what the Washington court was likely to do.  But if it does not have in hand a final ruling from Washington, the order said, the San Antonio court would then have to try to anticipate that outcome.

If the San Antonio court decides to hold some or all of the primary elections after April 3, it added, it would do its best to schedule the elections on a date that will give adequate time to take into account what has happened in the Washington court.

Meanwhile, the state of Texas on Monday filed a new test case in District Court in Washington under Section 5 of the Voting Rights Act.  Texas sued without waiting for the Justice Department to say whether it will object to a new Texas law  that requires most voters in the state to present a government-issued photo ID before they will be allowed to vote.   The Justice Department recently objected to a similar law enacted in South Carolina, on the theory that it discriminates on the basis of race since many minority voters do not have official ID cards.

In its new complaint, Texas argued that Section 5 should not even apply to its voter ID requirement because the law was not enacted with the aim or the result that it discriminates on the basis of race.   Although the state did not argue, as some critics of Section 5 have, that the provision is unconstitutional, it contended that the federal court in Washington must decide that Texas may go ahead with the photo ID law or else the court would have to confront the question of whether Section 5 is an unconstitutional intrusion on the state.   Any interpretation that Section 5 bars such a law, the complaint contended, will put the provision beyond Congress’s constitutionality authority to enforce the Fifteenth Amendment’s ban on denial of the right to vote based on race.

(Thanks to Michael Li of the TEXAS REDISTRICTING website for links to the court documents discussed in this post.)


Recommended Citation: Lyle Denniston, Two primaries in Texas?, SCOTUSblog (Jan. 23, 2012, 5:48 PM),