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January 9th, 2012:

Reports from SCOTUS redistricting arguments

There’s almost too much information to parse on the legal arguments made before the Supreme Court over the Texas redistricting maps. Let’s start with The Hill:

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.


At issue is an interim map drawn by a Texas court that could be used for this year’s elections, while the long federal process of approving or striking down the Republican-controlled Texas Legislature’s maps plays out. Under the Voting Rights Act, Texas has to get approval of any maps by either the Justice Department or the U.S. District Court for D.C., because of the state’s history of racial discrimination. The D.C. court has indicated that the Republican map is unlikely to be fully approved.
This is just one of many legal cases pending on the maps. The D.C. court is set to decide whether the maps violate the Voting Rights Act early next month, not early enough for Texas to be able to draw a new map without having to move back its primary. The U.S. District Court for the Western District of Texas will likely have to make some changes one way or the other on its own map — which it drew after rejecting the Legislature’s map — assuming the Supreme Court addresses its concerns to that San Antonio court and not the D.C. court.

Most of the justices indicated they thought both maps were unacceptable and could not be put into law without violating the Voting Rights Act. They might decide that the new map drawn by the Texas Legislature should be the benchmark from which to work, but that the state has to show in every instance that it is not discriminating against minorities. This approach seemed to be favored by Justice Anthony Kennedy, perceived as the swing vote on the highly polarized court.

This could lead to a new map that followed the basic contours of the state-drawn map but would be greatly altered where the courts found cases of discrimination. This would likely lead to a new temporary map that falls somewhere in between the two existing options and could force Texas for the second time to move its primary back. It is currently scheduled for April 3.

Right now, the surest bet seems to be that you can cross April 3 off your calendar for the primary elections. The absolute drop dead date, given Texas’ election codes, is June 26, which would mean that both parties will have conducted their biennial conventions without having precincts in place for precinct chairs. Keep that in mind when you read this:

Several justices considered whether courts could resolve the matter in time for the April vote. “Why can’t this all be pushed back and wouldn’t that eliminate a lot of the problems we are grappling with in this case?” Justice Samuel Alito asked.

Justice Alito is asking if SCOTUS can’t just wait till the DC court issues its preclearance ruling. One wonders why SCOTUS didn’t think about that before granting that stay and thus throwing the entire election calendar into chaos. Rick Hasen addresses the possibilities.

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.

Personally, I can imagine worse outcomes than the Justice Kagan approach. If that’s really what happens, I can live with it, and might even wind up being reasonably happy about it. The way I’ve looked at this all along is that from my perspective this case is basically like defending a swing seat. The best outcome for you is status quo, and any change is necessarily for the worse. Still, there’s a fair amount of room between what the Lege did and what the San Antonio court did, which means there’s still a fair amount of room for the final outcome to be an overall positive. I’m going to hold onto that for now.

One other thing to note is this:

5. What’s not at stake in this case: the constitutionality of section 5 of the Voting Rights Act. Chief Justice Roberts put the kabosh on that directly:

MR. GARZA: …And there is a good reason why Texas is covered under the Voting Rights Act. As this Court indicated in — in LULAC v. Perry, there is a terrible history of historical discrimination in Texas, including discrimination–

CHIEF JUSTICE ROBERTS: The constitutionality of the Voting Rights Act is not at issue here, right?

MR. GARZA: That’s not.

“Mr. Garza” is Jose Garza, who argued the case for the plaintiffs. I presume he actually said “That’s right” or something to that effect – you can see the whole transcript here if you want to check for yourself. Robert Miller opined that Section 5 was at stake, but so far no one else seems to be of that opinion.

SCOTUSBlog, which also noted that Justice Roberts steered the discussion away from the constitutionality of Section 5, has the most in depth coverage, including this description of how the Kagan plan came to be:

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.

As before, all we can do now is wait and see what happens. Maybe I’ll have more time to do primary interviews (and less time for general election interviews) than I’ve currently planned for. Here’s more from Michael Li, who also has statements from MALDEF and AG Abbott; the Trib; and PDiddie.

UPDATE: Links to more coverage can be found here.

2012 Democratic primary overview – Harris County

Harris County legislative districts under the court-drawn map

So with the start of the new year, we turn our attention to the primary elections, whenever they may turn out to be. I’ve added a new page to the site, for 2012 contested Democratic primaries in Harris County. It has the usual information about candidates that are in contested primaries – links to campaign websites and finance reports, with information about endorsements and interviews to follow. A few things to note:

– This page is for contested Democratic primaries in Harris County only. I will fill in the other races after the primaries. I will also have a separate page for other primaries of interest outside of Harris County.

– Needless to say, the races and candidates may be subject to change, depending on what SCOTUS says and what happens in the second filing period. I will make updates as needed later.

– I have included website information for candidates where I could find it. This early in the cycle, not everyone has websites up yet, and a couple of candidates, such as Wanda Adams and Jarvis Johnson, have sites that are still configured for their last election. If there’s anything I’ve missed, or if I’m not quick enough to notice a new website, please let me know.

– I’ve begun the process of scheduling interviews – yes, already – and will be running them through the election. Races that are not directly subject to the whims of the Supreme Court will be done first. In the interest of preserving my sanity, I do not plan to do interviews for all of the Constable races, though I do intend to do them for Precinct 1, as that’s where I live and vote. I will also do judicial Q&As for the three contested judicial primaries on the ballot.

– I will not be creating a similar page for the contested GOP primaries. Frankly, you can get most of the information you’d want for that here. As the rough count of interviews I plan to do on the Democratic side is 25 and may grow, I don’t intend to do any interviews with GOP contestants, at least not at this time.

– Candidates who are not in contested primaries will be interviewed for the general election. If I’m lucky, I’ll have a two or three month break between the primary and the start of general election interview season.

– If you are a candidate in a contested primary, or you represent such a candidate, and you are not certain that I have your contact information, please send it to me. You can email me at kuff – at – offthekuff – dot – com, you can send me a message via Facebook, or you can leave a comment on this post.

That’s all I’ve got for now. Let me know if you have any questions or comments about the new page.

SCOTUS hears redistricting arguments today

Today is a big effin’ deal at the Supreme Court.

The Supreme Court will attempt on Monday to untangle the political mess in Texas created by a voting rights controversy.

The case could have important political consequences, and highlights a lurking issue regarding the continued viability of a key provision of the Voting Rights Act, the landmark legislation passed in 1965 to protect minorities from discriminatory voting practices.


In court papers, Paul D. Clement, an attorney representing Texas, argued that the Texas court improperly ordered “sweeping changes” to the legislature-enacted maps and “made numerous highly controversial policy judgments.”

“Even though the vast majority of districts for the Texas House had not even been challenged by DOJ in the preclearance proceeding or by the plaintiffs in this case, the majority’s interim plan redrew the boundaries of 128 of the 150 House districts,” Clement wrote.

He argued that the Supreme Court should allow the maps drawn by the legislature, not those drawn by the Texas court, to be used temporarily in the upcoming election while the preclearance procedure runs its course.

The Obama administration disagreed. It argued that if the Supreme Court were to allow even the temporary use of the legislature-drawn maps it would undermine Section 5’s mandate that requires the state to obtain preclearance before enforcing voting changes.

Stanford Law School professor Pamela S. Karlan, who serves as counsel for the Mexican American Legislative Caucus, agreed, saying, “To allow an unprecleared plan to go in effect when it has been challenged long before an election cycle would be a major retreat from the way Section 5 has operated until now.”

You can read a fuller version of Professor Karlan’s argument at Texas Politics. As PDiddie put it, this essentially boils down to whether or not “Anthony Kennedy has changed his mind 180 degrees from Clark v. Roemer twenty years ago”.

Texas Redistricting has all the briefs, with links to analysis and news coverage. He also notes that there’s action going on in the DC preclearance case, but surely you don’t need me to tell you to follow Texas Redistricting by now, do you?

The backdrop of all this is Section 5 of the Voting Rights Act. Rick Hasen sums up what’s at stake.

Though Texas only implicitly challenges that section, several direct attacks to the constitutionality of Section 5 are simmering, including one from Shelby County, Ala., to be heard by a federal court this month.

At the Supreme Court, the looming constitutional question “will be the 800-pound gorilla in the room,” says Professor Richard Hasen, an election law expert at the University of California-Irvine. Hasen observes that because of other cases in the pipeline, the justices are likely to “sooner rather than later” rule on the constitutionality of Section 5’s pre-clearance rule.

Of course, we don’t know how soon they’ll rule, let alone the scope of their ruling, but until they do everything from the date of the primary to the printing of voter registration cards remains in limbo. So yeah, today is a big day.

UPDATE: Michael Li comes through with a great overview of the case and its issues.

Lykos subpoenaed

That grand jury keeps stirring things up.

A grand jury investigating possible wrongdoing within the DA’s Office has officially subpoenaed DA Pat Lykos. The probe centers around problems with the Houston Police Department’s DWI testing vans.

The DA’s Office will neither confirm nor deny that there’s been a subpoena issued. They say that due to the secrecy of the grand jury proceedings, they can’t talk about it. But we do know that the DA has been subpoenaed and that some time in the next few weeks, she will be testifying.

This is an ongoing grand jury investigation that’s already seen some of the DA’s top assistants take the stand. At question are the DA’s use of so-called BAT vans used in drunk driving cases, and whether the DA’s Office knew of flaws with those testing vans without informing defense attorneys of those potential problems.

There are several links to prior coverage on that story, if you need to catch up a bit. Let’s just say that if this is true and it does happen, it’s going to be a big deal. Mark Bennett has more.

Audit says HISD isn’t cost sensitive enough

An audit of HISD’s procurement process says the district could be paying too much for some things.

The audit, conducted by the nonprofit Council of the Great City Schools, found that the district’s purchasing standards “under-value” a vendor’s proposed price in some cases, which means the district could be paying more than it should.

Last year, HISD spent $530 million on classroom supplies, equipment, travel and various services.

When selecting vendors, the district rates them on various factors, which can vary depending on the project. Construction projects give the greatest weight to price, between 55 and 100 percent, the audit found. However, in other cases that were not identified, the district weights price as low as 12.5 percent.

Texas law does not require school districts to use the lowest bidder.

Trustee Mike Lunceford, chairman of the HISD board’s audit committee, said he wants the administration to start providing reasons why it did not select the vendor with the lowest price.

“When we’re voting, it should be very clear, if it’s not the low bid, why,” Lunceford said. “We should be going with the low bid.”

HISD also was knocked in the audit for not disclosing the evaluation criteria in most of its requests for proposals, except for those in the construction area, and for changing the standards in the middle of the process in some cases.

See here for some background. Price isn’t everything, and there are good reasons to consider other factors – hiring practices, environmental issues, a preference for local businesses, and so forth – but these things need to be clearly spelled out and agreed upon, and there needs to be consistency in applying the standard. I’m glad to see these issues brought to light, and I trust the Board will now take the appropriate steps to address them.