Many questions at the redistricting hearing

From the Trib:

The Legislature is currently considering whether to ratify maps drawn by the three federal judges and used in the 2012 elections. It became clear during Wednesday’s hearing that the judges and the lawyers in the case agree that the Legislature probably can’t make changes to the maps during the special session — given the charge for that session from Gov. Rick Perry.

The judges didn’t decide anything, though they asked the lawyers several questions about where things stand and how the cases should proceed. Questions include:

  • If the Legislature adopts the court’s lines as its own, should the litigation underway in San Antonio stop and leave future arguments to other courts?
  • Should objections to the state-drawn maps extend to similar lines in the court-drawn maps?
  • Should new information about elections and demographics be used in putting new maps together if it wasn’t available to lawmakers when they first drew maps in 2011?

That’s all open to argument, which is why the court asked the lawyers to file briefs. Lawmakers have said they could be finished in a week to ten days. If that’s so, the judges could be free to decide their own next move knowing what the Legislature wants to do. The lawyers have until next Wednesday to file their briefs, and the judges said they’ll call another hearing sometime after that.

Texas Redistricting goes into more detail.

Hispanic and African-American plaintiff groups took strong issue with the State of Texas’ argument that the case would essentially begin anew.

Jose Garza, counsel for the Mexican-American Legislative Caucus, told the three-judge panel that, if the Legislature were adopt the interim maps as permanent, the plaintiffs would be amending their pleadings to include claims based on those maps – and that case law supported the court’s retention of jurisdiction in those circumstances.

And they argued that because the new legislative maps would not really be new maps but rather a variant of the legislatively enacted maps that the court previously considered, the court’s work would essentially pick up where it left off when the interim maps were adopted.

At various points in the hearing, the narrowness of Gov. Perry’s special session call came into question.

Although the state’s lawyer David Mattax said that he could not say whether the call would restrict consideration of alternate maps, lawyers for plaintiff groups – and Circuit Judge Jerry Smith – suggested that it did – and plaintiff groups said that was further evidence that not only were the maps not new, but that Republican leaders had predetermined the outcome – and once again excluded meaningful input from minority groups.

But in a sign of how complicated and unprecedented the current scenario is, Garza and lawyers for the other plaintiff groups said how the court went about its work would depend on whether section 5 survives Shelby Co.

If section 5 is upheld, they said the court would need to consider whether adjustments to the maps would be needed to incorporate the D.C. court’s preclearance findings – a position that Mattax agreed with notwithstanding his position that the maps would be new enactments.

And, if section 5 is struck down, the court would need to address the plaintiffs’ section 2 and constitutional claims, giving preclusive effect to the D.C court’s ruling on issues like discriminatory intent.

The preclusion question drew opposition from the state and extended questioning from Judge Jerry Smith – but no resolution today.

I presume the reason why the plaintiffs want the court to consider the interim maps as the same as the legislatively drawn maps is that most of the groundwork has already been done, so if the interim maps are just variations on a theme then this could all quite reasonably end up with new, more plaintiff-friendly maps in time for the 2014 elections. If we have to start from scratch, however, it’s hard to see how everything could be done in time for the December filing season. That could mean delayed primaries again, or it could mean we keep the interim maps for 2014 and aim for resolution in 2016. Once you see it in those terms, it’s clear why the plaintiffs want to pick up where we left off, and the state wants a do-over.

As for the question about whether the interim maps could be amended during the special session, this isn’t rocket science. Greg Abbott has been calling for the interim maps to be adopted since March, as a piece of strategy to bolster his legal defense of the maps. Discussion was never part of the plan. The irony is that the Republicans were slapped after the 2011 redistricting for ramrodding the process and avoiding input and feedback from minority groups. You’d think they’d learn, but then no, you wouldn’t. Anyway, MALC Chairman Rep. Trey Martinez-Fischer sent a letter to House Redistricting Chair Drew Darby, asking to bring the Governor’s office and the AG’s office to the hearings to ask about the agenda and why there’s no apparent room for input in the session. That ought to be fun if Darby accedes to the request.

Finally, everyone officially agreed that the Senate map needed no further changes, so the court will enter an order to that effect and award attorney’s fees to Sen. Wendy Davis once everything else is settled. Going by the briefing schedule the next hearing will be in August, after the Shelby decision is handed down.

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