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A Viewer’s Guide to the Supreme Court Case
Texas Redistricting blog 1/9/12
http://txredistricting.org/post/15561146468/a-viewers-guide-to-the-supreme-court-case
A Viewer’s Guide to the Supreme Court Case
The start of a “January to remember” kicks off Monday afternoon at 1 p.m. (ET) with arguments in the Supreme Court about the interim legislative and congressional maps drawn by the San Antonio panel.
Here’s a preview of the case:
What will the Supreme Court decide?
There are three interlinked core issues.
The first, and most basic issue, is whether the San Antonio panel abused its discretion in drawing interim maps that did not hew closely enough to the maps adopted by the Texas Legislature.
Then, if the Supreme Court concludes that was the case, the court will have to explain to the San Antonio panel what it needs to do to fix the maps – or how it should draw new ones.
Related to that, the Supreme Court will need to decide whether there is enough time to fix any problems that it finds in the interim maps or whether it should just order the elections to go forward on the state’s maps (as the state argues) or the court-drawn interim maps.
Mixed in with those more pedestrian issues is the lurking and potentially explosive issue of whether the preclearance process under section 5 continues to be constitutionally viable nearly 50 years after enactment of the Voting Rights Act.
Great explanation of the case today before SCOTUS. Lots more at the link above. Michael Li breaks it down for us once again.
May the force be with us!
25 replies
= new reply since forum marked as read
= new reply since forum marked as read
The Texas redistricting cases forum on SCOTUS blog 1/3/12
(snip)
roxanne friedman
Of course Rehnquist would take that position. It was as leader of Republican “ballot security”, i.e. minority voter intimidation, activities in Arizona that he came to the attention of Nixon insiders.
The Texas three-judge court is composed of two hispanic district judges well schooled in Texas bare-knuckle politics, Xavier Rodriguez (GHW Bush) and Orlando Garcia (Clinton), and Circuit Judge Jerry Smith. Smith, whose vocal dissents from every ruling made by the court probably attracted the attention of the Supreme Court in the first place, is a Reagan appointee and author of the Hopgood opinion forbidding affirmative action at the University of Texas Law School. That the drawing of a judicial map, the need for which is supported by precedent and the process of which is fully described in the decision, would be subject to expedited review, despite the Court’s repeated refusals to engage in pre-election review of voting changes, reeks of the complaints of Proposition 8 proponents against Judge Walker.
It should be noted that Texas made no effort to comply with the one person-one vote mandate of Baker v. Carr. Rather, it first determined that maximum disparity it thought it could get away with and then manipulated district boundaries to maximize Anglo Republican political control. Now when it reaps the consequences of these decisions, it responds with ever more brazen challenges to the legal regime created to deter its ongoing discrimination. Its single complaint about the interim map, that it fails to consider state requirements that county boundaries be respected, has long been rejected as a matter of both Voting Rights Act and constitutional (Gray v. Sanders) law.
There is no new issue presented by this case. The question is whether the formalism of states’ “dignitary interests” and de jure race neutrality will overcome the reality of historical disenfranchisement and current race/nationality-based gerrymandering.
(snip)
roxanne friedman
Of course Rehnquist would take that position. It was as leader of Republican “ballot security”, i.e. minority voter intimidation, activities in Arizona that he came to the attention of Nixon insiders.
The Texas three-judge court is composed of two hispanic district judges well schooled in Texas bare-knuckle politics, Xavier Rodriguez (GHW Bush) and Orlando Garcia (Clinton), and Circuit Judge Jerry Smith. Smith, whose vocal dissents from every ruling made by the court probably attracted the attention of the Supreme Court in the first place, is a Reagan appointee and author of the Hopgood opinion forbidding affirmative action at the University of Texas Law School. That the drawing of a judicial map, the need for which is supported by precedent and the process of which is fully described in the decision, would be subject to expedited review, despite the Court’s repeated refusals to engage in pre-election review of voting changes, reeks of the complaints of Proposition 8 proponents against Judge Walker.
It should be noted that Texas made no effort to comply with the one person-one vote mandate of Baker v. Carr. Rather, it first determined that maximum disparity it thought it could get away with and then manipulated district boundaries to maximize Anglo Republican political control. Now when it reaps the consequences of these decisions, it responds with ever more brazen challenges to the legal regime created to deter its ongoing discrimination. Its single complaint about the interim map, that it fails to consider state requirements that county boundaries be respected, has long been rejected as a matter of both Voting Rights Act and constitutional (Gray v. Sanders) law.
There is no new issue presented by this case. The question is whether the formalism of states’ “dignitary interests” and de jure race neutrality will overcome the reality of historical disenfranchisement and current race/nationality-based gerrymandering.
I take if from the level of comments that the participants are mainly lawyers. I know Nina Perales of MALDEF is. She is their Lead Council and she has argued before SCOTUS.
SCOTUS blog Lyle Denniston 1/7/12
Argument preview: Texas, the courts, and minority voters
(snip)
Background
Just as the Supreme Court’s controversial ruling two years ago in Citizens United v. Federal Election Commission has become a major influence on the financing of the 2012 elections, the Court’s coming decision this Term on three legislative redistricting cases from Texas may have a strong impact on who wins some key election contests — and might even help settle control of the new U.S. House in the Congress that gathers next January. The ruling also may bring a severe test of the constitutionality of America’s most important law on the voting opportunities of minorities, the Voting Rights Act of 1965. For a case that could be decided on very narrow grounds, it has developed potentially historic proportions.
The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics. The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S. House seats.
Although the cases as they reached the Supreme Court are focused closely on the special requirements imposed on some states — mostly in the South — by Section 5 of the Voting Rights Act of 1965, their implications range well beyond that provision and raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.[/div
Argument preview: Texas, the courts, and minority voters
(snip)
Background
Just as the Supreme Court’s controversial ruling two years ago in Citizens United v. Federal Election Commission has become a major influence on the financing of the 2012 elections, the Court’s coming decision this Term on three legislative redistricting cases from Texas may have a strong impact on who wins some key election contests — and might even help settle control of the new U.S. House in the Congress that gathers next January. The ruling also may bring a severe test of the constitutionality of America’s most important law on the voting opportunities of minorities, the Voting Rights Act of 1965. For a case that could be decided on very narrow grounds, it has developed potentially historic proportions.
The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics. The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S. House seats.
Although the cases as they reached the Supreme Court are focused closely on the special requirements imposed on some states — mostly in the South — by Section 5 of the Voting Rights Act of 1965, their implications range well beyond that provision and raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.[/div
First Reading blog AAS 1/9/12
First Reading: Supreme Court hears redistricting arguments today
(snip)
From Tim Eaton’s story in Sunday’s Statesman: “Much of the discussion in Washington is expected to center on district boundaries for the U.S. House, Texas House and state Senate, but there is likely to be a broader — and arguably more significant — issue brewing at the country’s highest court. The justices are expected to talk about possible changes to the Voting Rights Act of 1965. The landmark legislation, signed by President Lyndon Johnson, outlawed discriminatory voting practices adopted in many Southern states after the Civil War, including literacy tests, as a prerequisite to voting. Many observers think the conservative court might be positioning itself for a future change to Section 5 of the Voting Rights Act — the section that calls for states with a history of racial discrimination, such as Texas, to get approval from the federal government before they can make changes to election laws. … Few people predict that the Supreme Court will use the Texas redistricting case to kill Section 5 outright. However, Hasen and others say the justices might take swipes at Section 5 to invite future challenges to the law. Some members of the court, most notably Chief Justice John Roberts, have voiced concerns about Section 5 in the past. In 2009, Roberts said that the section might no longer be necessary and could represent an intrusion on states’ sovereignty. … Texas Attorney General Greg Abbott’s opinion about the constitutionality of pre-clearance has been pretty clear and well-known. Lauren Bean, a spokeswoman for Abbott, said last week that pre-clearance can lead to a delay of months or years in enacting changes to the election laws.”
First Reading: Supreme Court hears redistricting arguments today
(snip)
From Tim Eaton’s story in Sunday’s Statesman: “Much of the discussion in Washington is expected to center on district boundaries for the U.S. House, Texas House and state Senate, but there is likely to be a broader — and arguably more significant — issue brewing at the country’s highest court. The justices are expected to talk about possible changes to the Voting Rights Act of 1965. The landmark legislation, signed by President Lyndon Johnson, outlawed discriminatory voting practices adopted in many Southern states after the Civil War, including literacy tests, as a prerequisite to voting. Many observers think the conservative court might be positioning itself for a future change to Section 5 of the Voting Rights Act — the section that calls for states with a history of racial discrimination, such as Texas, to get approval from the federal government before they can make changes to election laws. … Few people predict that the Supreme Court will use the Texas redistricting case to kill Section 5 outright. However, Hasen and others say the justices might take swipes at Section 5 to invite future challenges to the law. Some members of the court, most notably Chief Justice John Roberts, have voiced concerns about Section 5 in the past. In 2009, Roberts said that the section might no longer be necessary and could represent an intrusion on states’ sovereignty. … Texas Attorney General Greg Abbott’s opinion about the constitutionality of pre-clearance has been pretty clear and well-known. Lauren Bean, a spokeswoman for Abbott, said last week that pre-clearance can lead to a delay of months or years in enacting changes to the election laws.”
AAS 1/7/12
Supreme Court to hear Texas redistricting case
When the U.S. Supreme Court convenes Monday to consider Texas' redistricting case, the primary question before it will be which maps the state must use for this year's elections: the maps drawn by the Legislature last summer, interim maps substituted by a federal court in San Antonio or some variation of the two.
(snip)
Some members of the court, most notably Chief Justice John Roberts, have voiced concerns about Section 5 in the past. In 2009, Roberts said that the section might no longer be necessary and could represent an intrusion on states' sovereignty.
In hopes of capitalizing on Roberts' and other justices' positions, a couple of Southern states — Alabama and North Carolina — have already challenged Section 5.
(snip)
The swing vote on the Supreme Court seems to lie with Justice Anthony Kennedy.
Kennedy, who was appointed by President Ronald Reagan, said in a 1991 redistricting case that it would be problematic to allow a state to implement any redistricting map that has not been pre-cleared.
"Failure to obtain either judicial or administrative pre-clearance 'renders the change unenforceable,'" he said in 1991.
But, as Hasen points out, Kennedy too has talked about how pre-clearance can be a burden.
Supreme Court to hear Texas redistricting case
When the U.S. Supreme Court convenes Monday to consider Texas' redistricting case, the primary question before it will be which maps the state must use for this year's elections: the maps drawn by the Legislature last summer, interim maps substituted by a federal court in San Antonio or some variation of the two.
(snip)
Some members of the court, most notably Chief Justice John Roberts, have voiced concerns about Section 5 in the past. In 2009, Roberts said that the section might no longer be necessary and could represent an intrusion on states' sovereignty.
In hopes of capitalizing on Roberts' and other justices' positions, a couple of Southern states — Alabama and North Carolina — have already challenged Section 5.
(snip)
The swing vote on the Supreme Court seems to lie with Justice Anthony Kennedy.
Kennedy, who was appointed by President Ronald Reagan, said in a 1991 redistricting case that it would be problematic to allow a state to implement any redistricting map that has not been pre-cleared.
"Failure to obtain either judicial or administrative pre-clearance 'renders the change unenforceable,'" he said in 1991.
But, as Hasen points out, Kennedy too has talked about how pre-clearance can be a burden.
Pre-clearance can be a burden, Kennedy thinks. So freaking what - Democracy is a burden. We chose to live in a society formed to treat all individuals as equals and the courts should make sure States follow that edict.
I still find it really chaps me to think that a man named Kennedy may be the death of the Voting Rights Act that a much better man named Kennedy helped get started. It just really, really gets me.
Last edited Mon Jan 9, 2012, 05:49 PM - Edit history (2)
http://thehill.com/blogs/ballot-box/house-races/203191-supreme-court-grapples-with-messy-texas-redistricting-case
The Hill 1/9/12
Supreme Court grapples with messy Texas redistricting case
The Supreme Court justices grappled to find a way to resolve a messy Texas redistricting case during oral arguments Monday morning, presenting then knocking down a variety of small-bore solutions to reach an interim map for Texas’s congressional and state-level elections.
The justices were clearly unhappy with their options, not wanting to put in place either Republican state legislators’ redistricting map or a state-drawn “bipartisan” map that drew in parts from the GOP map. They seemed to be looking for the solution that would have the least legal and political impact. But whatever they do could sway a few congressional seats to one party or the other in the next election — and affect how the Voting Rights Act is applied for decades to come.
What the justices will do next is unclear — and unlikely to satisfy lawmakers or civil rights groups.
Their decision could decide control of Congress: As many as four House districts could swing from one party to the other depending on what contours the final interim map has. The importance of the case could be seen in the audience: Top Democratic and Republican attorneys attended, as well as House members from both parties, including Texas Reps. Sheila Jackson Lee (D), Earl Doggett (D), Eddie Bernice Johnson (D) and Lamar Smith (R).
“How do you decide between two wrong choices?” asked Chief Justice John Roberts at one point.
The Hill 1/9/12
Supreme Court grapples with messy Texas redistricting case
The Supreme Court justices grappled to find a way to resolve a messy Texas redistricting case during oral arguments Monday morning, presenting then knocking down a variety of small-bore solutions to reach an interim map for Texas’s congressional and state-level elections.
The justices were clearly unhappy with their options, not wanting to put in place either Republican state legislators’ redistricting map or a state-drawn “bipartisan” map that drew in parts from the GOP map. They seemed to be looking for the solution that would have the least legal and political impact. But whatever they do could sway a few congressional seats to one party or the other in the next election — and affect how the Voting Rights Act is applied for decades to come.
What the justices will do next is unclear — and unlikely to satisfy lawmakers or civil rights groups.
Their decision could decide control of Congress: As many as four House districts could swing from one party to the other depending on what contours the final interim map has. The importance of the case could be seen in the audience: Top Democratic and Republican attorneys attended, as well as House members from both parties, including Texas Reps. Sheila Jackson Lee (D), Earl Doggett (D), Eddie Bernice Johnson (D) and Lamar Smith (R).
“How do you decide between two wrong choices?” asked Chief Justice John Roberts at one point.
Scotus blog Lyle Denniston 1/9/12
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 other parts were valid, too, before it can use those parts. 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.
(snip)
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.”
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 other parts were valid, too, before it can use those parts. 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.
(snip)
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.”
Very good in depth review of what happened. I don't think it's going to necessarily be good. It won't be the republican drawn legislative map, but it may not be the S.A. court map either.
Supreme Court Case Transcript 1/9/12
RICK PERRY, GOVERNOR OF TEXAS, : ET AL., :Appellants : No. 11-713
v. :
SHANNON PEREZ, ET AL.
(snip)
CHIEF JUSTICE ROBERTS: Counsel, I think
there's -- I see two different problems and I'm not
quite sure how they come out. One, you cannot assume
that the legislature's plan should be treated as if it
were precleared. The district court in Texas cannot
assume or presume what the district court here in D.C.
is going to do.
But on the other hand, it can't presume it
the other way. In other words, it can't draw its
interim plan assuming that there are going to be these
section 5 violations, because that's presuming what the
Court's going to do the other way.
So how do we decide between those two -- you
have two wrong choices. How do we end up?
RICK PERRY, GOVERNOR OF TEXAS, : ET AL., :Appellants : No. 11-713
v. :
SHANNON PEREZ, ET AL.
(snip)
CHIEF JUSTICE ROBERTS: Counsel, I think
there's -- I see two different problems and I'm not
quite sure how they come out. One, you cannot assume
that the legislature's plan should be treated as if it
were precleared. The district court in Texas cannot
assume or presume what the district court here in D.C.
is going to do.
But on the other hand, it can't presume it
the other way. In other words, it can't draw its
interim plan assuming that there are going to be these
section 5 violations, because that's presuming what the
Court's going to do the other way.
So how do we decide between those two -- you
have two wrong choices. How do we end up?
Houston Chronicle 1/9/12
Supreme Court struggles with Texas election case
(snip)
The justices wrestled with whether the state's plan or maps drawn by federal judges in San Antonio that are friendlier to minorities should take effect, or whether some new effort should be made.
There was no consensus apparent at an afternoon argument session at the high court, although the justices on the liberal side of the court seemed more sympathetic to minority groups and the conservatives appeared more favorable to the state.
The legal wrangling is complicated by the involvement of three federal courts — district courts in San Antonio and Washington, and the Supreme Court.
(snip)
One possible path is to wait for the Washington court to rule, which could clear up several problems in this case relating to how the different federal courts interact.
Jose Garza, the San Antonio-based lawyer representing Mexican-American state lawmakers and other opponents of the state's maps, said he expects a decision by mid-February.
But Justice Ruth Bader Ginsburg said she doubted the court could move that quickly, leaving the justices to ponder how fast they should act and when voting in Texas should take place.
Supreme Court struggles with Texas election case
(snip)
The justices wrestled with whether the state's plan or maps drawn by federal judges in San Antonio that are friendlier to minorities should take effect, or whether some new effort should be made.
There was no consensus apparent at an afternoon argument session at the high court, although the justices on the liberal side of the court seemed more sympathetic to minority groups and the conservatives appeared more favorable to the state.
The legal wrangling is complicated by the involvement of three federal courts — district courts in San Antonio and Washington, and the Supreme Court.
(snip)
One possible path is to wait for the Washington court to rule, which could clear up several problems in this case relating to how the different federal courts interact.
Jose Garza, the San Antonio-based lawyer representing Mexican-American state lawmakers and other opponents of the state's maps, said he expects a decision by mid-February.
But Justice Ruth Bader Ginsburg said she doubted the court could move that quickly, leaving the justices to ponder how fast they should act and when voting in Texas should take place.
Texas Redistricting blog 1/9/12
Initial thoughts about the Supreme Court argument
(snip)
One option that got a lot of play and seemed attractive to justices on both sides of the court’s ideological spectrum was the possibility of just punting and letting the DC court issue its preclearance ruling. The suggestion came first from Justice Alito and later in the argument Justice Sotomayor asked directly, “What’s our absolute drop dead date?” (Answer: maybe June) Justice Kagan also raised the possibility.
Another option which came up was the possibility of shifting the burden to the State of Texas for showing that it had a likelihood of success on parts of the map that had been challenged in the section 5 case - a suggestion made by Justice Kagan.
Justice Kennedy also suggested that maybe the appropriate route might be to say that the San Antonio court should limit itself to section 2 and constitutional inquiries while leaving section 5 issues to the DC court (as opposed to having the San Antonio court guess whether there would be problems with the state’s maps). But the retort to that was that it would sidestep section 5, even if just on an interim basis, and based on the questioning, it did not appear there would be a broad consensus for that option.
Initial thoughts about the Supreme Court argument
(snip)
One option that got a lot of play and seemed attractive to justices on both sides of the court’s ideological spectrum was the possibility of just punting and letting the DC court issue its preclearance ruling. The suggestion came first from Justice Alito and later in the argument Justice Sotomayor asked directly, “What’s our absolute drop dead date?” (Answer: maybe June) Justice Kagan also raised the possibility.
Another option which came up was the possibility of shifting the burden to the State of Texas for showing that it had a likelihood of success on parts of the map that had been challenged in the section 5 case - a suggestion made by Justice Kagan.
Justice Kennedy also suggested that maybe the appropriate route might be to say that the San Antonio court should limit itself to section 2 and constitutional inquiries while leaving section 5 issues to the DC court (as opposed to having the San Antonio court guess whether there would be problems with the state’s maps). But the retort to that was that it would sidestep section 5, even if just on an interim basis, and based on the questioning, it did not appear there would be a broad consensus for that option.
I like Michael Li's gut feeling. Maybe this thing will be punted by SCOTUS. That option would let the DC court essentially decide if maps were in violation of VRA first. The candidates won't like it, but too friggin bad - it may be the only option that doesn't rubber stamp a horrible republican legislative map that violated minority voting rights. We may have a ruling before June. The D.C. case starts at the end of the month - the June date is just a drop dead, worst case kind of date.
I've been reading/learning about VRA for 6 years and it still boggles my mind. This whole thing is super complicated. I'm grateful we have the web and can find good blogs that explain it better for us.
At the beginning of the video. 
And Abbott just comes across as a sleaze saying that repukes have a right to protect incumbents. 
Justin Levitt at Miller-McCune.com 1/9/12
Supreme Court Messes With Texas, Voting Rights
(snip)
The least bad of the available options is for the court to go back to first principles. The whole point of Section 5 was to stop covered jurisdictions from immediately getting their way, based on demonstrated past problems with “their way.” Section 5 imposes delay — at least until either the DOJ or the D.C. federal court can sign off — as its entire reason for being.
It’s true that the Supreme Court has recently raised some questions about that reason for being. But this case is not an excuse to answer those questions. It’s not that the court is averse to expanding the question presented in the service of an overly bold holding. It’s that other cases will present the issue directly, without the imperative to sprint.
Which leaves today’s case. If the court is concerned with deference to a state sovereign, Texas’s legitimate policy interests can still be (imperfectly) recognized. The way to do what Texas appears to want, without risking the harm to minorities that Section 5 exists to protect, is to start with the last precleared expression of Texas’s desires. This “benchmark” plan should be the baseline for a court drawing an interim plan, with updates for population growth and guesstimates for compliance with the Voting Rights Act.
The good news is that this is what the San Antonio court says that it did. There are doubtless flaws — the court was working at warp speed to put a plan in place before the elections had come and gone. But unless the imperfections are vast, time is too short in this emergency stay from an interim order for the Supreme Court to micromanage the process.
The DOJ has offered a promising face-saving solution: approve the San Antonio court’s general approach, but remand for that court to incrementally explain some of its particular choices. If the added scrutiny leads to a few tweaks that get even closer to the benchmark plan, everyone can claim victory. But this much is clear: with no particularly good answer other than flying us all around the world backward to bring us back to Thanksgiving, the Supreme Court needs to issue a rule in keeping with Section 5’s design, and then get out of the way. On the double.
Supreme Court Messes With Texas, Voting Rights
(snip)
The least bad of the available options is for the court to go back to first principles. The whole point of Section 5 was to stop covered jurisdictions from immediately getting their way, based on demonstrated past problems with “their way.” Section 5 imposes delay — at least until either the DOJ or the D.C. federal court can sign off — as its entire reason for being.
It’s true that the Supreme Court has recently raised some questions about that reason for being. But this case is not an excuse to answer those questions. It’s not that the court is averse to expanding the question presented in the service of an overly bold holding. It’s that other cases will present the issue directly, without the imperative to sprint.
Which leaves today’s case. If the court is concerned with deference to a state sovereign, Texas’s legitimate policy interests can still be (imperfectly) recognized. The way to do what Texas appears to want, without risking the harm to minorities that Section 5 exists to protect, is to start with the last precleared expression of Texas’s desires. This “benchmark” plan should be the baseline for a court drawing an interim plan, with updates for population growth and guesstimates for compliance with the Voting Rights Act.
The good news is that this is what the San Antonio court says that it did. There are doubtless flaws — the court was working at warp speed to put a plan in place before the elections had come and gone. But unless the imperfections are vast, time is too short in this emergency stay from an interim order for the Supreme Court to micromanage the process.
The DOJ has offered a promising face-saving solution: approve the San Antonio court’s general approach, but remand for that court to incrementally explain some of its particular choices. If the added scrutiny leads to a few tweaks that get even closer to the benchmark plan, everyone can claim victory. But this much is clear: with no particularly good answer other than flying us all around the world backward to bring us back to Thanksgiving, the Supreme Court needs to issue a rule in keeping with Section 5’s design, and then get out of the way. On the double.
I like Justin Levitt's plan/analysis the best. Lets start with the last pre-cleared plan and add populations back into them. That puts us back to the maps we have currently and then some. It would be easy to draw those 4 new districts where populations had increased. That would be the rational thing to do.
http://electionlawblog.org/?p=27599
Rick Hansen ElectionLaw blog 1/9/12]
What Will the Supreme Court Do in the Texas Redistricting Case?
(snip)
2. The two most likely outcomes appear to be (a) follow Justice Kagan’s approach or (b) wait it out for the D.C. court. Justice Kagan’s approach would be a remand to the San Antonio court, with instructions for Texas to justify why its lines were likely to be precleared. Wherever Texas could make that showing, the court would defer to Texas map. Wherever Texas could not make that showing, the judges would not rely on Texas’s map (they might be told to rely on the old lines, taking into account section 2 and constitutional considerations. The alternative is to hope that the D.C. court could decide this case on the merits in time, thereby mooting the need for the interim map.
3. Both of these outcomes present challenges given the timing, especially if there are further appeals to the Supreme Court if either the San Antonio court draws new maps under the Justice Kagan approach or the D.C. court denies preclearance of some parts of the plan and an interim map must be drawn partially using Upham deference. On timing, the Justice Kagan approach is better, because there would be time for another appeal to the Supreme Court if necessary. Drawback of Justice Kagan plan: it requires going back to the same 3-judge court in San Antonio which the conservatives on the Court may well not trust to do a good/fair job, based upon comments at today’s argument. But Chief Justice Roberts seemed unsatisfied with Texas’s position and what the three-judge court did, and I could see him getting 8 or 9 justices to agree on a quick order following the Justice Kagan approach.
AAS 1/9/12
June primaries for Texas? High court discussions broach possibility
WASHINGTON — There was much discussion Monday in a Texas redistricting hearing at the U.S. Supreme Court about delaying the state's primary elections once again.
The high court didn't rule, nor did it say when it would, but as the justices ponder what to do with the challenged — and unapproved — redistricting maps, the clock continues to tick. And the more time that passes, the higher the likelihood that Texas voters will not be going to the polls to vote in primaries now scheduled for April 3.
The court brought up discussions about a primary vote as late as June. The primaries were originally scheduled for March 6.
(snip)
Although the San Antonio court held a trial on the Legislature's maps, it has not ruled on them. But because the Legislature's maps have not received federal pre-clearance required under the U.S. Voting Rights Act, the panel drew its own maps for use during this year's fast-approaching elections.
The state challenged the court-drawn maps, appealing to the Supreme Court to block them. The high court issued a stay blocking the maps last month. Monday's hearing allowed the justices to hear arguments for and against proceeding with the court's maps.
June primaries for Texas? High court discussions broach possibility
WASHINGTON — There was much discussion Monday in a Texas redistricting hearing at the U.S. Supreme Court about delaying the state's primary elections once again.
The high court didn't rule, nor did it say when it would, but as the justices ponder what to do with the challenged — and unapproved — redistricting maps, the clock continues to tick. And the more time that passes, the higher the likelihood that Texas voters will not be going to the polls to vote in primaries now scheduled for April 3.
The court brought up discussions about a primary vote as late as June. The primaries were originally scheduled for March 6.
(snip)
Although the San Antonio court held a trial on the Legislature's maps, it has not ruled on them. But because the Legislature's maps have not received federal pre-clearance required under the U.S. Voting Rights Act, the panel drew its own maps for use during this year's fast-approaching elections.
The state challenged the court-drawn maps, appealing to the Supreme Court to block them. The high court issued a stay blocking the maps last month. Monday's hearing allowed the justices to hear arguments for and against proceeding with the court's maps.
June primaries sound fine by me. I'd rather have June primaries that are fair than April primaries that are screwed.
Texas Tribune 1/9/12
Supreme Court Hears Texas Redistricting Case
(snip)
The state hasn't challenged the Voting Rights Act directly. But if the Supreme Court decides the Legislature's map should be used even though it doesn't have the required preclearance, it would weaken the federal government's control over political maps and procedures used in Texas and other states covered by the Voting Rights Act.
The primaries have already been delayed, from March 6 to April 3. Holding them any later would put the state's political parties in peril because their biennial conventions, set for June, would have to be held before the runoff elections. That could tangle up the selection of delegates for national conventions later in the summer.
But it was near the top of the questions from the justices on the court. "Texas has a very early primary," said Justice Samuel Alito. "Some states have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"
The preclearance proceedings on the Legislature's plans are still under way; the three federal judges hearing that case will open hearings Jan. 17 on the Legislature's maps and plan to hear closing arguments Feb. 3.
If the Supreme Court decides the Texas elections should wait for a ruling from the Washington panel, the April 3 primaries will probably be delayed. When the primaries were moved to April 3, election officials from around the state told the courts they'd have to have maps and candidate lists by Feb. 1; if they don't, those election officials, already pressed, will argue they don't have time to put the elections together.
Supreme Court Hears Texas Redistricting Case
(snip)
The state hasn't challenged the Voting Rights Act directly. But if the Supreme Court decides the Legislature's map should be used even though it doesn't have the required preclearance, it would weaken the federal government's control over political maps and procedures used in Texas and other states covered by the Voting Rights Act.
The primaries have already been delayed, from March 6 to April 3. Holding them any later would put the state's political parties in peril because their biennial conventions, set for June, would have to be held before the runoff elections. That could tangle up the selection of delegates for national conventions later in the summer.
But it was near the top of the questions from the justices on the court. "Texas has a very early primary," said Justice Samuel Alito. "Some states have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"
The preclearance proceedings on the Legislature's plans are still under way; the three federal judges hearing that case will open hearings Jan. 17 on the Legislature's maps and plan to hear closing arguments Feb. 3.
If the Supreme Court decides the Texas elections should wait for a ruling from the Washington panel, the April 3 primaries will probably be delayed. When the primaries were moved to April 3, election officials from around the state told the courts they'd have to have maps and candidate lists by Feb. 1; if they don't, those election officials, already pressed, will argue they don't have time to put the elections together.
Move it, move it.... I like them to move it.
Last edited Tue Jan 10, 2012, 02:06 PM - Edit history (1)
I wish they wouldn't have stayed the S.A. court map too. Essentially they've made this drag out even longer.
I hope the DC court is prepared to act on this quickly.
huffington Post 1/9/12
Texas Redistricting Case Risks Political Firestorm; Slowly Supreme Court Backs Away
(snip)
Roberts' joke had enough truth in it to cut off the discussion on timing. As Garza wrapped up his presentation, however, Kagan offered another fix that could very well help the Court decide the case on the merits without creating a political firestorm.
Fusing the conservatives' preference for the final plan to be based on Texas' contested maps with the liberals' desire to protect the political power of minority voters, she asked, "What would you think of a system in which the Court could start with the Texas plan ... and say anything that is consistent with statutes and the Constitution can go forward, but it's Texas that has to show that consistency?"
"I think that that's a much more reasonable approach than the one offered by the state," Garza said. The justices all sat quietly in apparent contentedness after he wrapped up his answer.
After a rare several seconds of silence, Garza chose not to ruin the moment.
"I don't think I have anything else," he concluded and sat down.
Clement, in rebuttal, conceded that Kagan's suggestion is "better than the [San Antonio] court's opinion." And that concession may have been enough to bring the Court together, however compelling Clement's more maximalist closing statements were for the conservative wing.
Texas Redistricting Case Risks Political Firestorm; Slowly Supreme Court Backs Away
(snip)
Roberts' joke had enough truth in it to cut off the discussion on timing. As Garza wrapped up his presentation, however, Kagan offered another fix that could very well help the Court decide the case on the merits without creating a political firestorm.
Fusing the conservatives' preference for the final plan to be based on Texas' contested maps with the liberals' desire to protect the political power of minority voters, she asked, "What would you think of a system in which the Court could start with the Texas plan ... and say anything that is consistent with statutes and the Constitution can go forward, but it's Texas that has to show that consistency?"
"I think that that's a much more reasonable approach than the one offered by the state," Garza said. The justices all sat quietly in apparent contentedness after he wrapped up his answer.
After a rare several seconds of silence, Garza chose not to ruin the moment.
"I don't think I have anything else," he concluded and sat down.
Clement, in rebuttal, conceded that Kagan's suggestion is "better than the [San Antonio] court's opinion." And that concession may have been enough to bring the Court together, however compelling Clement's more maximalist closing statements were for the conservative wing.
Texas Tribune 1/11/12
If the Courts Take More Time, So Will Texas Primaries
It takes at least two months to put a primary election together once political maps are finally drawn, and if the federal courts don't spit out a final Texas map within the next three weeks, the state's primary elections probably can't be held on April 3.
(snip)
"Texas has a very early primary," Justice Samuel Alito Jr. said at one point during the hearing. "Some states have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"
The problems can be sorted into two piles. The state doesn't have maps to use for congressional and legislative elections, and it will take the courts a couple of months, at best, to come up with a set of maps that has jumped through all of the legal hoops, from trial courts to appeals. The U.S. Supreme Court and two separate panels of federal judges in Washington and in Texas are sorting out which maps to use.
That second stack of troubles is all about the calendar and the practicalities of holding elections. Once they have political maps, local election officials in the state's 254 counties have to break them down into voting precincts, sorting voters into the smaller groupings that show them everything from which races they'll be voting in to which places they'll be voting from. That tedious process can take four to five weeks in large counties, election officials say, and then those lines have to be approved by federal officials under the Voting Rights Act. The courts haven't approved a map for the April 3 election date.
If the Courts Take More Time, So Will Texas Primaries
It takes at least two months to put a primary election together once political maps are finally drawn, and if the federal courts don't spit out a final Texas map within the next three weeks, the state's primary elections probably can't be held on April 3.
(snip)
"Texas has a very early primary," Justice Samuel Alito Jr. said at one point during the hearing. "Some states have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"
The problems can be sorted into two piles. The state doesn't have maps to use for congressional and legislative elections, and it will take the courts a couple of months, at best, to come up with a set of maps that has jumped through all of the legal hoops, from trial courts to appeals. The U.S. Supreme Court and two separate panels of federal judges in Washington and in Texas are sorting out which maps to use.
That second stack of troubles is all about the calendar and the practicalities of holding elections. Once they have political maps, local election officials in the state's 254 counties have to break them down into voting precincts, sorting voters into the smaller groupings that show them everything from which races they'll be voting in to which places they'll be voting from. That tedious process can take four to five weeks in large counties, election officials say, and then those lines have to be approved by federal officials under the Voting Rights Act. The courts haven't approved a map for the April 3 election date.
Texas Tribune 1/11/12
The Redistricting Arguments, and Who Made Them
(snip)
The U.S. Supreme Court heard arguments Monday in Perez v. Perry — the current Texas redistricting case. The full transcript of the hearing is available here. Some selected quotes — some from judges, some from the lawyers — follow.
(snip)
The Redistricting Arguments, and Who Made Them
(snip)
The U.S. Supreme Court heard arguments Monday in Perez v. Perry — the current Texas redistricting case. The full transcript of the hearing is available here. Some selected quotes — some from judges, some from the lawyers — follow.
"I don't see how we can give deference to an enacted new map, if Section 5 says don't give it effect until it's been precleared."
— Justice Sonia Sotomayor
(snip)
"There seems to be general consensus on at least three points that we've talked about today. First, that the unprecleared plan cannot take effect. The second, that the district court is foreclosed from entering and engaging in an analysis of the issues that are pending before the three-judge court in Washington, D.C., and that at this point, a court ordered plan must be implemented on an interim basis."
— Jose Garza, attorney for the plaintiffs