The Texas redistricting appeal wasn’t on the list of cases reviewed by the Justices at their screening conference today.
With the passage of time – and the case not even being listed for review – the calendar now makes it highly unlikely that the court could take up the case even if it later decides to grant full review. The four cases which the court did grant today are expected to be argued in April at the court’s last scheduled oral arguments. So taking the Texas case and hearing it this year would require an unusual special setting – and there has been no indication that the court sees that kind of urgency in the case.
Instead, many observers have speculated that the high court has deferred deciding what to do with the Texas case until it decides in Shelby Co. v. Holder whether section 5 of the Voting Rights Act remains constitutional.
Of course, it is possible that the court later could summarily affirm the opinion below or dismiss the appeal as requested by the Justice Department and redistricting litigants (which would not require argument), but it looks increasingly likely that any action on the Texas redistricting appeal could be an issue for the 2013-14 term and not this one.
If so, the question then becomes whether the San Antonio panel takes any action to begin drawing remedial maps as well as address other legal challenges – or whether the San Antonio panel also decides to wait for Shelby Co. To date, the court has not taken any action since receiving scheduling proposals from the parties in early December.
While waiting arguably makes sense, the challenge could become having to quickly draw remedial maps if section 5 is upheld – since a decision in the Shelby Co. case very likely might not come until late June. Any changes to the maps would require redrawing precinct lines and a number of other technical steps, and the countdown to the filing date for the Texas primary starts in September.
While early dates could be tweaked, the court will have to balance not taking unnecessary steps against the possibility that the Texas primary election schedule could be messed up again.
I’m not really sure how I feel about this. It makes sense to wait, but it sure does ratchet up the stakes. I presume that there may need to be remedial maps even if SCOTUS makes changes to or throws out Section 5 of the Voting Rights Act, because the San Antonio lawsuit wasn’t about preclearance. There may not be all that much to do because as I recall the interim maps used for the 2012 elections made changes to most if not all of the districts that had been challenged and for which the DC court ruled against Texas. But I’m not a lawyer, so don’t take my word for it. We’ll know more after SCOTUS does its business.