January 20th, 2012:

Who knows what will come next

As you’ve undoubtedly heard by now, the Supreme Court has officially thrown out the interim maps that were drawn by the San Antonio court, in a unanimous decision handed down this morning. What does this mean? I’m going to start with Adam B at Daily Kos:

Let’s take a step back: Texas’ legislature drew a new map to account for the decennial census, population growth, etc. Because Texas is a covered jurisdiction under Section 5 the Voting Rights Act of 1965, it had to submit its map to the United States District Court for the District of Columbia or the Department of Justice for “preclearance”—i.e., to ensure that minorities weren’t screwed over. They chose the Court. That’s still ongoing.

In the meantime, plaintiffs sued Texas in the United States District Court for the Western District of Texas alleging that the map, in fact, discriminated against Latinos and African-Americans and diluted their voting strength, notwithstanding the fact that Latinos and African-Americans accounted for three-quarters of Texas’ population growth since 2000. Sensing some merit in the plaintiffs’ claims and fearing that the DC court wouldn’t complete its process in time, the Texas court drew its own map—since Texas has an early primary and wants to have something firmly in place by February 1. And that, writes the Court today in a per curiam (i.e., unsigned) opinion), is where it screwed up:

[H]ere the scale of Texas’ population growth appears to require sweeping changes to the State’s current districts. In areas where population shifts are so large that no semblance of the existing plan’s district lines can be used, that plan offers little guidance to a court drawing an interim map. The problem is perhaps most obvious in adding new congressional districts: The old plan gives no suggestion as to where those new districts should be placed. In addition, experience has shown the difficulty of defining neutral legal principles in this area, for redistricting ordinarily involves criteria and standards that have been weighed and evaluated by the elected branches in the exercise of their political judgment. Thus, if the old state districts were the only source to which a district court could look, it would be forced to make the sort of policy judgments for which courts are, at best, ill suited.

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.”

So fix it if you must, but don’t start from scratch:

[T]he state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences.

The Supremes thus sent the judges to the drawing board—literally!—to try again, a compromise advanced by Justice Kagan during oral argument.

Rick Hasen agrees that this is basically the Kagan compromise and sees this as a win for the state:

Speaking non-technically, the Supreme Court held that the three-judge court erred in starting its redistricting plan from scratch. It should have started with the state’s plan, and then adjusted to the extent the plan violated the Voting Rights Act or the Constitution.

More technically, the Court held that as to the Voting Rights Act section 2 standards, the three-judge court is not to defer on those districts where it appears more likely than not that Texas is in violation of the section 2 standards. (Burden appears to be on the VRA section 2 plaintiffs.)

As to section 5, however, because only the Washington DC court can decide on preclearance, the Court is not to take the section 5 preclearance question into account unless those plans have a reasonable probability of failing section 5 review (a tough standard for challengers to the law to meet).

So this is a big win for Texas, and will require the drawing of districts much more likely to favor Texas’s interim plan (and therefore favor Republicans over Democrats favored by the three-judge court’s original map).

One caveat: at most these lines will last for one election, as the preclearance issue being decided by the Washington court will dictate the preclearance going forward, and as the section 2 issue finally gets resolved by the three judge court in Texas.

Michael Li sees it a little differently:

1. The opinion has hallmarks of a tough fought compromise. It is not entirely clear, for example, what ‘reasonable probability’ means or how it differs from the traditional injunction standard of ‘substantial likelihood of success,’ except that the court went on to say that it meant ‘not insubstantial.’ Some commentators and observers have suggested that is a high standard; other observers think the standard could be somewhat less demanding. Others have no idea what the opinion means. As one prominent civil practitioner said in an email, ”The definition of ‘reasonable probability’ being ‘not insubstantial’ is not really clearing things up for me.”

1a. Because redistricting cases come up only every ten years or so, unfortunately it may be another decade or more before we get Supreme Court clarification on what it meant by ‘reasonable probability.’ That’s one of the challenges of practicing in this area.

1b. As far as ‘reasonable probability,’ some are already pointing to this email.

1c. Lloyd Doggett and ‘reasonable probability.’ My initial reaction is that Lloyd Doggett still comes out pretty good from all this. The D.C. court has already rejected the state’s contention that crossover districts are not protected under section 5. That’s a critical legal hurdle. The Travis County intervenors still need to show that the existing CD-25 is a crossover district on the facts, but given that is an argument based largely on the performance of Austin, they would seem to have a good shot at doing so.

2. Overall, the opinion favors the state’s maps, but so would any permanent remedial map drawn after a decision in the section 5 case being tried in Washington this week and next. In other words, the opinion in that sense just requires that the result look something like the ultimate outcome. It’s hard to complain too much about that. It’s a defeat for the interim maps, but not necessarily for redistricting plaintiffs.

There’s already a ton more analysis and interpretation out there for your perusal. SCOTUSBlog has an in depth look at the opinion. Hasen revisits his original take and considers Li’s suggestion of a “political compromise” in the opinion; he also provides a nice roundup of other coverage. The Texas Democratic Party notes that “what is clear is that the state’s original maps have been found to be discriminatory in some way by every court which has examined them”, while plaintiff Sen. Wendy Davis is “encouraged” by the ruling. The Lion Star insists this is “not a loss for the redistricting plaintiffs”. PoliTex has some other Democratic reactions.

On the other side, PoliTex also notes some glee from Republicans, including man without a district Michael Williams and the maybe-not-retired Aaron Pena. I will simply point out that just before New Year’s Day the DC Court issued an opinion on preclearance standards that took Texas to task for its methodology and strongly suggested that preclearance was not in the cards. As Pena’s district was one that the plaintiffs and the Justice Department had focused on, I wouldn’t be surprised at all if his district remains substantially changed from what the Lege drew. My own non-lawyerly take on this is that if the San Antonio court waits for the DC court, or if it just relies on that opinion while completing the do-over, there’s still a lot of potential for significant alterations to the Lege’s maps. Clearly, bad things can happen from a Democratic perspective – the Lege combined HDs 137 and 149, for example, while the court restored those and instead combined HDs 133 and 136, while turning HD144 into a Latino-majority Democrat-favoring district – but overreach is still overreach, and there’s nothing to suggest it can’t or won’t be dialed back. It’s a question of where and how much.

As for the primaries, who knows when they’ll be? It’s not out of the question that either the San Antonio court does its rework in the next week or so, or that the DC court issues a quick ruling followed by some quick mapmaking, and we can keep the April date with some compression of the absentee ballot mailing period. More likely, I think, is a later primary, but whether May or June is anyone’s guess. At least we’re not waiting for SCOTUS any more. What I know for sure is that I have some more map-studying and number-crunching in my future. I’m sure you’re as eager for me to get to that as I am.

UPDATE: Greg weighs in.