The Chron sets the table.
The nine justices of the U.S. Supreme Court will take their seats Tuesday morning to hear a case that could remake the political map of Texas.
Hidden in the legalese of “interlocutory injunctions” and “statutory defects” is this simple question for the justices to dissect: Did the Republican-led state Legislature purposely draw its last legislative and congressional boundaries to subvert the voting power of Latino and African-American voters?
The answer, expected by June, could influence the racial and partisan makeup of the state’s political districts, culminating a long, high-stakes legal battle that has the potential to turn Texas a little more blue.
A possible finding of voting rights violations also could force the Lone Star State back under federal supervision for future election disputes, a civil rights remedy associated with the state’s segregationist past. Texas only got removed from federal preclearance requirements in 2013. Restrictions requiring strict federal scrutiny of all elections had been in place since the Voting Rights Act of 1965.
“The Texas case thus could be in a position to break new ground and will be closely watched for that reason,” said legal court analyst Michael Li, writing for the New York University Law School Brennan School of Justice.
See here for the last update. While the Chron story mostly covers familiar ground, it does note that thanks to other cases currently being considered by SCOTUS, the state is probably not going to use the “it was just a partisan matter” defense. Michael Li discusses that in this Q&A he did with the Observer:
What should we know about the other two redistricting cases before the Supreme Court?
In Texas, the claims are about racial fairness, but in the other two cases — in Wisconsin and Maryland — the claims are about partisan gerrymanders.
The Supreme Court has never put partisan gerrymandering out of bounds in the way it has racial gerrymandering, which has left a really big loophole for states to claim they’re only discriminating based on partisanship. It’s become this sort of strange defense you see playing out in states like Texas, where lawmakers essentially argue they’re discriminating against Democrats and not African Americans. That’s because it’s perfectly OK to discriminate against Democrats when you draw the lines. But if [the court] limits partisan gerrymandering, it could shut down the excuse that a lot of places in the South, including Texas, have used.
The two cases being argued on Tuesday are not the Texas maps’ first trip to the Supreme Court. They were also before the Court in 2012, which triggered a bit of a judicial fire drill at the time.
What the state will probably argue is that the current map, which was adopted in 2013, is legal and needs no changes made. Ian Millhiser of ThinkProgress breaks that down.
Texas initially drew its gerrymandered maps in 2011, before the Supreme Court struck down much of the Voting Rights Act. Under the fully armed and operational Act, any new Texas voting law had to be submitted to federal officials in Washington, DC for “preclearance” before it could take effect, and a federal court in DC ultimately concluded that the state’s maps were not legal.
Meanwhile, the 2012 election was drawing closer and closer, and Texas still did not have any valid maps it could use to conduct that election.
With this deadline drawing nigh, a federal district court drew its own maps that Texas could use for 2012, but the Supreme Court vacated those maps. In an ominous statement that plays a starring role in Texas’ Perez brief, the Supreme Court explained that “redistricting is ‘primarily the duty and responsibility of the State.’” The district court’s maps, at least according to the justices, needed to be reconsidered because they may not have shown sufficient deference to state lawmakers.
“A district court,” the Supreme Court concluded, “should take guidance from the State’s recently enacted plan in drafting an interim plan.” Thus, even when state lawmakers draw legally dubious maps for the very purpose of giving some voters more power than others, courts should be reluctant to make sweeping changes to those maps.
In fairness, this was not an especially novel holding. The Court proclaimed in 1975that “reapportionment is primarily the duty and responsibility of the State.” But such a holding takes on chilling implications when a state legislature is actively trying to rig elections. Should courts really defer to lawmakers who are a straight up trying to undercut democracy?
It’s likely that a majority of the Supreme Court’s answer to this question in Perezwill be an emphatic “yes!” and that the Court will effectively allow much of Texas’ gerrymander to endure without any meaningful judicial review at all.
After the Supreme Court’s 2012 decision striking down the district court’s maps, the case went back down to the district court with instructions to try again. By this point, it was late January. Texas still had no valid maps, and a primary election was looming. Candidates had no idea where to campaign. Incumbents did not know who their constituents would be.
The result was a rushed, March 2012 order which laid out interim maps that closely resembled the maps drawn by the state legislature. “This interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case,” the court warned when it handed down the hastily drawn maps. Nevertheless, the court understood “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”
With few good options, the district court allowed several of Texas’ districts to remain unchanged, even though there were serious concerns that those districts were racial gerrymanders.
Flash forward to 2018, and the Perez cases involve several of these unchanged districts that the district court later held to be illegally gerrymandered. But there’s a catch! The Texas legislature, seeing a potential opportunity to shut down this litigation altogether, took the district court’s inadequately scrutinized, rush-job maps, and wrote them into state law in 2013. They now claim that these maps are immune from judicial review because they were drawn by a court.
“There are few things a legislature can do to avoid protracted litigation over its redistricting legislation,” Texas claims in its brief. “But if the nearly inevitable litigation comes to pass, one would have thought there was one reasonably safe course available to bring it to an end—namely, enacting the three-judge court’s remedial redistricting plan as the legislature’s own.”
It’s a stunning, arrogant claim. The only reason why the district court blessed its interim maps is because it felt it had no choice — a deadline was looming, and the Supreme Court left it with little time to act and an order to defer to the state legislature’s maps whenever possible. The districts at issue in Tuesday’s oral argument never received meaningful judicial scrutiny before they were whisked into action as a matter of necessity.
And yet, it is highly likely that a majority of the Court will agree with Texas’ claim that its maps are immune from review. Though the district court struck down portions of the Texas maps (again), the Supreme Court voted along party lines to reinstate those maps for the 2018 election last September.
One way or the other, we ought to have a clearer idea of what is and is not allowed when maps are drawn. State Rep. Eddie Rodriguez and Travis County Tax Assessor Bruce Elfant, in this Statesman op-ed, explain their motivation for pursuing this litigation, and the Trib has more.