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More on the abortion funds’ lawsuits

Good overview in the WaPo.

The Texas law has so far withstood multiple court challenges by employing a highly controversial legal strategy: empowering private citizens to sue anyone who helps facilitate an abortion after the legal limit. Abortion rights advocates have tried to sue a long list of people in federal court in hopes of overturning S.B. 8, including Texas law clerks, judges and medical board officials — but, in each case, courts found that they were going after the wrong people.

After a month of fielding threats from these antiabortion groups on social media, the abortion funds argued in several lawsuits filed last week that the groups targeting them have identified themselves as the ones enforcing the law — and, therefore, the ones for abortion rights advocates to hold to account in federal court.

In these cases, the Lilith Fund and the North Texas Equal Access Fund are suing the America First Legal Foundation and the Thomas More Society, two antiabortion legal groups, in federal court, as well as two private citizens in Texas state court. Abortion funds, which raise money to help low-income patients seeking abortion care, have been instrumental in helping patients reach abortion clinics in other states since the Texas ban took effect.

The Thomas More Society’s “invocation of, and intent to enforce, S.B. 8 poses imminent and existential threats to the fundamental and constitutional rights of Plaintiffs, their staff, their volunteers, and their donors,” the abortion funds wrote in their court filing on Wednesday.

The Lilith Fund and the North Texas Equal Access Fund are filing these lawsuits to “protect themselves, their staff, their volunteers and their donors from the coordinated efforts by people and organizations across the country that have made it clear they intend to enforce S.B. 8 by filing lawsuits against abortion funds,” said Elizabeth Myers, one of the lawyers representing the abortion rights groups.


Some legal scholars think the new lawsuits by the abortion funds could pose a threat to S.B. 8 now that various people and organizations have made their intentions clear, said Steve Vladeck, a professor at the University of Texas School of Law, who specializes in the federal courts and has closely followed the Texas abortion ban.

“This case is not hypothetical because these particular defendants are in the process of pursuing various kinds of enforcement actions,” said Vladeck. After six months of trying to block the Texas law, abortion funds are probably thinking: “Now we finally have someone. Get out of our way, let’s go,” Vladeck said.

David Cohen, a law professor at Drexel Kline School of Law who specializes in gender and constitutional law, called the latest lawsuit a “brilliant move.” The abortion funds have built a legal case that “avoids many of the challenging legal problems of the previous lawsuits,” he added.

Even if a federal court judge does block the law, Vladeck said, the injunction will probably only apply to the particular defendants listed in the case. While those specific people and organizations would no longer be able to sue under S.B. 8, any other private citizen could still file a lawsuit.

At that point, Vladeck said, Texas abortion providers will have to decide whether they are comfortable resuming abortion care after six weeks of pregnancy. Abortion clinics and funds could still face other lawsuits, Vladeck said, but a favorable ruling in this case would make them more confident that they would win.

With these cases, Vladeck added, abortion rights groups are “building the defensive position.”

“They’re going to court to obtain a judgment that won’t be completely effective, but will make it easier to defend the lawsuits they will still face.”

See here and here for some background. I found that story on Tuesday, and on Thursday, the Trib had this to add.

“We are hopeful that any judge who looks at this will recognize the civil enforcement mechanism for what it is … and say these cases aren’t really about abortion,” said Elizabeth Myers, an attorney representing the abortion funds.

Instead, she said, their legal challenge is about stopping the “millions of bounty hunters who can sue in a very rigged one-sided court system” under the law’s private enforcement mechanism.

Aspects of this argument have already succeeded in state court, where a Texas judge found the law to be unconstitutional but declined to block it from being enforced. Now, the same lawyers are taking the case to federal court, where challenges to the law have faltered before.

But this attempt will have an advantage that those did not: The federal suits are filed in Chicago and Washington, D.C., rather than Texas, which allows the plaintiffs to avoid the extremely conservative 5th U.S. Circuit Court of Appeals.

The other two suits are filed in state court and have been added to ongoing multidistrict litigation, where all legal proceedings are stayed while the case is appealed.

South Texas College of Law Houston professor Rocky Rhodes said there are potential obstacles to this approach in federal court, but it’s the “best bet” to block the law that he’s seen yet.

“This is a better procedural mechanism to get the case before the [U.S.] Supreme Court … and it addresses many of the issues from the previous challenges,” he said. “And then, of course, a Supreme Court ruling is binding on all state and federal courts.”


When the Lilith Fund tweeted a request for donations, the Thomas More Society responded by saying “donors could get sued under SB8” and linking to the press release about its efforts to depose the funds’ leaders.

This makes it clear that the anti-abortion groups intend to bring lawsuits under the Texas abortion law, the new filings argue, and thus the groups can be sued proactively to stop them from doing so.

Neither the Thomas More Society or the America First Legal Foundation responded to requests for comment.

Rhodes has argued in several papers that this is a strong angle to challenge the law.

“This mechanism of ‘wait until you know someone is going to sue you, and then sue them in federal court first,’ is one of the best ways to get an offensive challenge teed up to [the law],” he said.

The filings argue that the abortion law violates advocates’ right to free speech by limiting how they talk to clients, advocate for abortion access and spend their donations, which could be considered political speech. In addition, they argue it is so vague that plaintiffs may not know what conduct is allowed or prohibited; it creates special rules that only apply to these lawsuits, which violates plaintiffs’ rights to equal protection under the law; and allows lawsuits to be brought by people who do not have standing because they have not been directly injured.

If a federal judge agrees with some aspects of these arguments, they could grant an injunction, stopping the Thomas More Society and the America First Legal Foundation from bringing lawsuits against the two abortion funds. The lawsuit also seeks a declaration that the law is “unconstitutional, void, of no effect and therefore not usable” — by anyone.

That wouldn’t stop anyone besides these two groups from bringing lawsuits, but it would create federal court precedent that could be cited in future litigation, Rhodes said.


Unlike previous legal challenges to the abortion law, these lawsuits deliberately sidestep the most highly politicized aspects of the law.

“This [case] is not really about abortion,” said Myers. “We’re not challenging the six-week ban.”

Myers said that’s not because they believe the six-week ban is constitutional, but rather because the courts may be more open to hearing arguments as to why other aspects of the law are also unconstitutional.

You gotta do what you gotta do, and if this can lead to taking the bounty hunting out of the picture, it will be a lot better. Indeed, that would allow abortions to continue in Texas, at least until SCOTUS can do more violence to Roe v Wade. But that day hasn’t happened yet, and with other states adopting similar bounty hunter laws, we have to deal with the immediate threat. Let’s hope for the best.

One federal court orders DACA restored

But hold on, because there’s another ruling to come.

A federal judge on Friday upheld his previous order to revive an Obama-era program that shields some 700,000 young immigrants from deportation, saying that the Trump administration had failed to justify eliminating it.

Judge John Bates of the U.S. District Court for the District of Columbia gave the government 20 days to appeal his decision. But his ruling could conflict with another decision on the program that a federal judge in Texas is expected to issue as early as [this] week.


Bates ruled in late April that the administration must restore the DACA program and accept new applications. He had stayed his decision for 90 days to give the Department of Homeland Security, which runs the program, the opportunity to lay out its reasons for ending it.

Kirstjen Nielsen, the homeland security secretary, responded last month, arguing that DACA likely would be found unconstitutional in the Texas case and therefore must end. She relied heavily on the memorandum that her predecessor, Elaine Duke, had issued to rescind the program and said the department had the discretion to end the program, just as the department under Obama had exercised discretion to create it.

Bates, who was appointed by President George W. Bush, did not agree. He called the shutdown of the program “arbitrary and capricious” and said Nielsen’s response “fails to elaborate meaningfully on the agency’s primary rationale for its decision.”

That’s the good news. The bad news is that federal judge Andrew Hanen will have a hearing in Houston on Wednesday the 8th on the Paxton lawsuit that seeks to put an end to DACA, and everyone seems to think that Hanen will (as has been his custom) give Paxton what he’s asking for. Which will force the matter to SCOTUS, and Lord only knows what happens next. I have more on the Texas case here and here, and see Mother Jones and ThinkProgress for more on the DC court’s ruling.

Clean Power Plan’s day in the DC court

We’ll see how it goes.

Dozens of lawyers from the government, industry and public interest groups packed the US Court of Appeals for the DC Circuit, to hear the divisive case that comes just weeks before a heated presidential election and illustrates how a President’s picks for the lower court might impact his own agenda.

The plan is currently frozen because last February, the Supreme Court voted to delay implementation until the appeals process could play out.

Opponents to the plan claim that the EPA went too far under the law to push the rule.

Judge Brett M. Kavanaugh at one point questioned EPA’s authority.

“This is a huge case,” he said and noted that it could “fundamentally” transform the industry. Kavanaugh said the administration’s policy is “laudable” but questioned under the separation of powers whether Congress, and not the EPA, had to speak clearly on the issue.

Judge Thomas B. Griffith chimed in asking, “why isn’t this debate going on in the floor of the Senate?” rather than before a panel of judges. But Judge Patricia A. Millet reiterated at one point that the Supreme Court “has already said” that the EPA has the authority to regulate in the area.

Other judges questioned whether by 2030, the rule would be any more transformative to the coal industry, for example, than market forces would be.

Judge David S. Tatel asked whether the agency was simply “invoking existing authority.”

While the morning session in court was dedicated to statutory arguments, in the afternoon the court heard arguments concerning whether it was unconstitutional. The challengers’ constitutional arguments did not appear to to get much traction with the judges.


During complex arguments before a multi-member court is dangerous to try to determine — based on questions posed at oral arguments — how a judge will ultimately rule. It’s worth noting however, that Tuesday’s case comes before an appellate court that has been transformed during the Obama administration.

Before Obama took office the appeals court tilted toward conservative appointees with six judges nominated by a Republican president and three nominated by a Democratic president. There were also two vacancies.

Currently, the active judges on the court consist of four GOP appointees and seven Democratic appointees. In 2013, Obama placed four judges on the court, three of them immediately after the Senate changed its filibuster rules. Tuesday’s case was heard by all the active members of the court except for Chief Judge Merrick Garland who has recused himself from hearing cases because he has been nominated to the Supreme Court.

“The party of an appointing president surely makes a difference in some types of cases — environmental for example — more than others,” said Russell Wheeler, a visiting fellow at the Brookings Institute. “When the full court meets is when the party of appointing president is likely to matter most because the great majority of decisions are made by three-judge panels, randomly drawn and not necessarily reflective of the overall composition of the court.”

See here for the background. ThinkProgress agrees with the basic vote counting, with the possibility of a GOP judge siding with the Dems. The long and short of it is that we’ve seen this basic fight play out multiple times before – the Obama administration proposes a regulatory enforcement plan for the EPA, various Republican states led by Texas freak out and file suit, and the courts sort it out, usually with the feds winning. But do keep in mind that all of this is happening because 1) a Democratic President who cares about fighting climate change proposed this regulatory scheme, among others, and 2) an appeals court that has more Democratic appointees than Republican ones will make the decision that is likely to stand thanks to the current makeup of the Supreme Court. The fastest way to undo this is to not have a Democratic President in place after November. I’m just saying.

Back to court for the Clean Power Plan

Here we go.

One of the late Justice Antonin Scalia’s final acts on Earth may have been to doom it.

Last February, on the final Tuesday of Scalia’s life, the Supreme Court handed down a 5–4 decision suspending the Obama administration’s Clean Power Plan. It was a surprising development — a lower court panel that included a conservative Republican judge previously denied a request to stay this plan — and a chilling development for anyone who cares about the planet. The Clean Power Plan is the Obama administration’s most ambitious effort to fight climate change. And it is difficult to exaggerate the consequences if these efforts fail:

In the relatively short term, the Environmental Protection Agency predicts that the Clean Power Plan will “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.” In the longer term, major cities could be swallowed by the ocean. Displaced residents will trigger a worldwide refugee crisis. Entire regions of the United States could be converted into a permanent Dust Bowl. The sheer magnitude of the catastrophe will rival any tragedy that has faced humanity since the Book of Genesis.

Scalia’s vote to stay the Clean Power Plan was enough to delay it, but not enough to destroy it. Now, however, the effort to permanently kill the plan is about to face its first big test.

A ten judge panel of the United States Court of Appeals for the District of Columbia Circuit — arguably the second-most powerful court in the country — will hear arguments on the fate of the plan on Tuesday. With Scalia dead, and the Supreme Court evenly split between Democrats and Republicans, the D.C. Circuit’s decision could be the last word on the plan’s legality.

While Scalia did not live to cast a vote eradicating the plan, his ghost still haunts this case. It lingers over the parties’ briefs, casting doubt upon long-settled doctrines viewed as rock solid just a few years ago. West Virginia v. United States Environmental Protection Agency, the challenge to the Clean Power Plan, is the culmination of a years-long effort by conservatives to hobble the executive branch — an effort Scalia started to embrace during his final years on the Court. And, if the Clean Power Plan falls, it will be because this effort scored just enough victories during the twilight of Scalia’s life.

See here, here, and here for the background. Needless to say, Texas is leading the charge in this litigation.

Texas Attorney General Ken Paxton on Monday accused the U.S. Environmental Protection Agency of trying to “force Texas to change how we regulate energy production,” through what he called an “unprecedented expansion of federal authority.”

“What we need is more reliable energy — not less, and the EPA is trying to stop that,” the Republican said while appearing on a panel in Washington, D.C.

Paxton specifically targeted the Clean Power Plan, President Obama’s state-by-state effort to fight climate change by shifting away from coal power to cleaner-burning natural gas and renewable resources.

His appearance on the panel, organized by the conservative Texas Public Policy Foundation, came one day before the U.S. Court of Appeals for the District of Columbia is to hear four hours of oral arguments over the carbon dioxide-cutting rule. Those watching the litigation say the outcome could make or break Obama’s legacy on climate change.


The regulations would force states to slash carbon dioxide emissions from power plants however they see fit — accelerating a shift from coal that started years ago. Carbon dioxide is a potent greenhouse gas that directly contributes to climate change.

For Texas — the nation’s biggest carbon dioxide emitter by far — that would mean cutting an annual average of 51 million tons of emissions, down about 21 percent from 2012 levels.

Paxton, Gov. Greg Abbott and other Texas Republicans have argued that doing so would cost the state jobs, push electricity costs too high and threaten reliability on the grid. They say the regulations subvert state power.

Eighteen states and a litany of health and environmental groups have joined the Obama administration in defending the Clean Power Plan.

On Monday, one environmental group criticized Paxton for championing coal interests while challenging the regulation.

“Dirty coal just doesn’t make sense anymore, economically or environmentally, but Attorney General Paxton appears to want to go down with a sinking ship,” Luke Metzger, director of the advocacy group Environment Texas, said in an email. “Texans support transitioning to clean energy and the Clean Power Plan is helping make that possible.”

Proponents of the rules, backed by early analyses, suggest that market forces and existing policies alone would push Texas most of the way toward its target.

One study released in May predicted that coal generation would shrink from about 28 percent of state power generation to 6 percent by 2035 — not factoring in the controversial federal regulation.

Aside from inflation, Texans would see “virtually no price increase” if natural gas and solar prices continue to get cheaper as some expect, concluded the study by the Brattle Group, a global research firm that often crunches numbers for Texas regulators. Funding for that study came from the Texas Clean Energy Coalition, which supports natural gas and renewable energy sources.

boy, nothing says “forward-thinking” like protecting the interests of coal-burning power plants. The DC Court’s decision here is very likely to be the final word. If it comes down to a Supreme Court that has a ninth member that was appointed by President Trump, it won’t matter anyway since the EPA will cease enforcing environmental regulations because global warming is a myth. So, you know, no big deal. The Observer and the Chron have more.

Full DC Circuit Court to review Clean Power Plan

From ThinkProgress, an update on yet another federal lawsuit involving Texas.

The Clean Power Plan will get its day in court, but in September, not June — and by the full en banc D.C. Circuit Court of Appeals, not the court’s normal three-judge panel that was scheduled to hear it in just over two weeks.

West Virginia v. Environmental Protection Agency is one of the most important environmental cases in almost a decade. The case will decide whether the EPA violated the law when it finalized its carbon rule to regulate greenhouse gas emissions from the power sector under the Clean Air Act.

So Monday evening the D.C. Circuit Court of Appeals announced it is bypassing its planned June 2 oral arguments over the Obama administration’s signature climate policy.

“It is ORDERED, on the court’s own motion, that these cases, currently scheduled for oral argument on June 2, 2016, be rescheduled for oral argument before the en banc court on Tuesday, September 27, 2016 at 9:30 a.m.,” the D.C. Circuit’s announcement read. “It is FURTHER ORDERED that the parties and amici curiae provide 25 additional paper copies of all final briefs and appendices to the court by June 1, 2016. A separate order will issue regarding allocation of oral argument time.”

See here and here for the proximate events that led to this, and here for all prior blogging on the Clean Power Plan. The linked article explains what the court’s order is all about, but the nickel version is that this ought to speed things up a bit, since the full court’s eventual ruling would go next to SCOTUS instead of being a midway point between the three-judge panel and SCOTUS. Since it was a 5-4 SCOTUS ruling that suspended the CPP pending judicial review – the first time that had ever happened – it’s highly likely that today’s diminished SCOTUS would deadlock if this were now on their plate. One presumes the high court will be at full strength by the time this does come their way, but regardless of that, it raises the stakes on the DC court’s eventual ruling. Buckle up, and get ready for a bunch of briefs to be headed the DC court’s way. E&E Publishing and the WaPo have more.

SCOTUS puts Clean Power Plan on hold

And in doubt.


In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.

The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.

But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court.

“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

In negotiating that deal, which requires every country to enact policies to lower emissions, Mr. Obama pointed to the power plant rule as evidence that the United States would take ambitious action, and that other countries should follow.

The White House said in a statement that it disagreed with the court’s decision and remained confident that it would ultimately prevail. “The administration will continue to take aggressive steps to make forward progress to reduce carbon emissions,” it said.


The E.P.A., represented by [Solicitor General Donald] Verrilli, called the requests for a stay “extraordinary and unprecedented.” The states challenging the administration’s plan, he said, could point to no case in which the Supreme Court had “granted a stay of a generally applicable regulation pending initial judicial review in the court of appeals.” In a later brief, the states conceded that point.

Mr. Verrilli said judicial review of the plan, including by the Supreme Court, will be complete before the first deadline for emissions reductions in 2022.

“There is no reason to suppose that states’ duties under the rule will be especially onerous,” Mr. Verrilli wrote. “A state can elect not to prepare a plan at all, but instead may allow E.P.A. to develop and implement a federal plan for sources in that state.”

Less than three weeks before this, the U.S. Court of Appeals for the District of Columbia denied the same request. As with everything the Roberts Court does, it’s hard not to read politics into their unprecedented granting of this request. I hope I’m wrong about that. The DC court will hear arguments on June 2, so one way or the other SCOTUS will be letting us know how they really feel in the near future. The Trib, Think Progress, SCOTUSBlog, Daily Kos, Slate, and the Observer have more.

Clean Power Plan can proceed for now



A federal appeals court has denied a request from Texas and other states to block President Obama’s Clean Power Plan, leaving the controversial climate change rules in place as a legal challenge winds through the courts.

The U.S. Court of Appeals for the District of Columbia wrote Thursday that the states — joined by the coal industry — “have not satisfied the stringent requirements for a stay.”

The two-page order was an early victory for Obama and others who support the state-by-state effort to combat climate change by slashing carbon emissions from power plants — largely through a shift from coal-fired power to natural gas and renewable sources.

Texas and West Virginia are leading a 25-state coalition challenging the plan, arguing that it could push electricity costs too high and threaten reliability. Beyond declining to immediately halt the rules, the court on Thursday set oral arguments in the case for June 2.


Texas must cut an annual average of 51 million tons of carbon to reach its federal target, a reduction of about 21 percent from 2012 emissions. The mandate rankles Republicans, but proponents of the rules — backed by early analyses — suggest that market forces and existing policies alone will push Texas most of the way toward its target.

As it stands, states have until Sept. 6 to submit a final plan or apply for an extension.

Texas leaders have refused to confirm whether they will create a carbon-cutting plan in case they lose in court. If the state flouts the rule, the EPA will impose its own plan on the state.

See here and here for the background. In addition to being not too hard a target to meet, the Clean Power Plan would have the ancillary benefit of saving water, and there are power companies in Texas who support it and oppose the lawsuit against the EPA. Not that any of that matters to Greg Abbott and Ken Paxton. FuelFix and Think Progress have more.

State ordered to pay fees in redistricting litigation

They don’t seem to be interested in doing that, however.


In a scolding tone, a federal appeals court panel in Washington, D.C., ordered the state of Texas on Tuesday to pay more than $1 million in attorneys’ fees in a case challenging district boundaries drawn by the Republican-led Legislature.

First under the direction of then-Texas Attorney General Greg Abbott and now under Attorney General Ken Paxton, the state has been fighting a court order for more than a year to pay the lawyers who battled the state over the issuance of redistricting maps for the Texas House, Texas Senate and U.S. House of Representatives.

A spokeswoman for Paxton, Cynthia Meyer, didn’t specify the state’s next steps. In an email, she said only: “This decision is disappointing for the state of Texas.”

A group of Hispanic Texans suing the state known as the “Gonzales intervenors” expects to take nearly $600,000 of the $1 million-plus in ordered fees from the state. A group that was led by former state Sen. Wendy Davis and U.S. Rep. Marc Veasey, both Fort Worth Democrats, should be awarded $466,680, and the Texas State Conference of NAACP Branches is owned $32,374, according to the court. The groups argued that boundaries were drawn to dilute the voting power of Hispanics and African-Americans.

Attorney Chad Dunn, a lawyer for the Davis group, said that he and other lawyers have repeatedly asked the attorney general’s office to pay the fees — only to be stonewalled, even in the face of a court order, issued in June 2014.

“If you or I or anybody else had done that, we would lose,” Dunn said. “What the D.C. Circuit has made clear is that Texas has to follow the same rules as any other litigant.”

Judge Patricia Millett of the U.S. Court of Appeals for the District of Columbia Circuit admonished the state for its refusal to file the proper documents, and the court seemed to chide the state’s lawyers for filing an incomplete advisory.

By not following the rules, Texas has limited its options, the court said.

“(T)he district court held that Texas had conceded virtually all of the issues relevant to the motions for attorneys’ fees by deliberately choosing not to address them,” the court said. “Rejecting Texas’ cursory ‘Advisory’ argument, the district court granted the motions and awarded fees.”


The appeals court opinion comes a year after U.S. District Judge Rosemary Collyer’s order that criticized lawyers in Abbott’s office for submitting a legal brief that devoted more effort to complaining than answering the legal issues in the fight over lawyer fees.

“This matter presents a case study in how not to respond to a motion for attorney fees and costs,” Collyer, appointed by former President George W. Bush, said in the June 2014 order.

A spokeswoman for Abbott said at the time that Texas shouldn’t be made to pay other parties’ legal fees in a case the state considers that it won.

I guess that’s one way to get out of an order you don’t like. Just declare yourself the actual winner of the case, and thus not subject to any orders about attorneys’ fees. SCOTUSBlog has a succinct explanation of why Texas’ position was erroneous, at the end of a much longer discussion of overall case:

In June 2014, U.S. District Judge Rosemary M. Collyer in Washington ruled that the three groups of challengers were entitled to recover their attorney fees expenses from Texas. The filing by the state’s lawyers, the judge wrote, “fails to recognize that the limited holding of Shelby County did not resolve the issues here.”

It was not the court’s duty, the judge added, to ask Texas to come up with some reasons to oppose the attorney fee requested. “Texas has had every chance to oppose the fees and costs that the applicants seek,” she added, but “it instead opted to file a three-page advisory that ignored every argument of applicants except the applicability of Shelby County.”

Under local court rules, the judge found, Texas had forfeited its right to oppose the fee award because of its failure to make an argument against it. Finding the voters and officeholders to have prevailed, she awarded one group $597,715.60 in fee recovery, another group $466,680.36, and the third $32,374.05 — for a total just under $1.1 million. Those amounts, the judge ruled, were reasonable.

At Texas’s request, Judge Collyer put her order on hold so that the state could appeal.

That appeal ended on Tuesday, with the D.C. Circuit upholding the fee awards, concluding that the Supreme Court’s June 2013 order did not settle the Texas redistricting case and did not resolve who would be the “prevailing party” in that case.

The Justices’ order, the panel said, was like many others in similar cases. All that the Court meant by that action, the decision added, was that there had been intervening developments that might suggest a need for the lower court to reconsider. This was not a ruling on the redistricting dispute, according to the panel, and it added: “It certainly did not declare Texas the victor.”

So there you go. As far as getting the state to quit making stuff up and pay its bills, I have an idea for how to get Ken Paxton’s attention, if it pleases the court: Just threaten to hold him in contempt of court. Recent history suggests that he will move quickly to comply with whatever you order, whatever it takes to stay out of the pokey. Just a suggestion, no pressure or anything.

Split decision on cross-state air pollution rule

Not too bad, actually.

Texas’ Republican leaders and environmentalists are both claiming victory Tuesday following an appeals court ruling that requires the federal government to ease limits on certain emissions for Texas and a dozen other states.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday ordered the Environmental Protection Agency to revisit caps on nitrogen oxide and sulfur dioxide emissions — set in an effort to limit the effects of air pollution across state boundaries. But the court also upheld the agency’s right to enforce such a regulation.

Texas was among 13 states, joined by industry and labor groups, that sued over the so-called Cross-State Air Pollution rule in 2011, challenging the EPA’s framework and complaining states weren’t given enough time to comply.

The regulation requires Texas and other “upwind” states in the South, Midwest and Appalachia to cut certain emissions that contribute to air pollution in East Coast states like New York.

In a 6-2 decision last year, the U.S. Supreme Court largely upheld the rule in a major win for the Obama administration. But the justices told the lower courts to resolve lingering questions about how to implement it.

Tuesday’s ruling addressed those issues, with the court noting “the petitions for review are therefore granted in part and denied in part.” It opted to leave the current emissions rules in place as the EPA revises them.

See here for the background. The DC Court had previously ruled against the CSAPR, but SCOTUS overruled them. The EDF explains what this ruling means.

The D.C. Circuit Court decision recognizes that, when the Supreme Court upheld the Cross-State Air Pollution Rule in April of 2014, it affirmed EPA’s fundamental methodology for implementing the “good neighbor” protections of the Clean Air Act. Today the D.C. Circuit Court granted claims by Texas and other states challenging particular emissions budgets while firmly rejecting associated requests to vacate the state-based emissions protections and rejecting several additional fundamental legal claims.

The court directed EPA to carry out additional analyses on remand, stating, “We remand without vacatur to EPA for it to reconsider those emissions budgets. We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule. (Decision, page 36, emphasis added)

The rule’s life-saving pollution reductions remain in full effect.

So that’s pretty good. I trust the revised rules the EPA comes up with will also be pretty good. Tough luck, polluters.

Once again to SCOTUS for Texas and the EPA

Plus ca change, and all that.

Texas again went head-to-head with the Environmental Protection Agency before the U.S. Supreme Court on Wednesday, this time challenging federal limits on the emission of pollutants like mercury, acid gases and other toxic metals from power plants.

Joined by 20 other states, Texas is arguing that the EPA didn’t properly consider the $10 billion annual price tag of its regulations, which “threatens to drive a number of coal-fired electric utilities out of business.” The rules target more than 50 coal- and oil-fired power plants across Texas, and industry and labor groups are also challenging them.

The EPA counters that Congress never directed the agency to consider costs the way Texas and other states think it should have. And in any case, the agency argues, the benefits far outweigh the costs. The agency asserts that the rule prevents up to 11,000 premature deaths per year. Mercury, a highly toxic chemical that can build up in the human body, is linked to brain abnormalities and developmental disorders.

“The [mercury] rule will importantly reduce serious hazards to the public,” the American Academy of Pediatrics wrote in a legal brief supporting the EPA. “Those hazards … are particularly acute for vulnerable groups, including children who can suffer debilitating, lifelong effects” from toxic pollution.


At the heart of the case is whether deeming regulations “appropriate and necessary” should include an aggressive consideration of costs early in the process. The plaintiffs say yes; the defendants say no. The D.C. Circuit Court agreed with the defendants last year, pointing out that the courts have previously said the EPA doesn’t need to consider costs that way unless Congress directly tells it to.

If the high court disagrees, a key issue will be how the benefits of environmental regulations should be quantified. Right now, the EPA says the benefits of the mercury rule could total as much as $80 billion, which dwarfs the estimated $10 billion cost.

Opponents say the $80 billion figure is misleading. Only $4 billion to $6 billion of it comes directly from reducing mercury pollution, they argue; the rest is a “co-benefit.” That’s because removing mercury from the air also removes the particulate matter it’s often attached to — leading to increased health benefits.

During oral arguments on the case Wednesday, Chief Justice John Roberts said that type of co-benefit calculation “raises the red flag” and looks like the EPA is trying to reduce particulate pollution through the back door. That would be an “end-run” around a separate part of the Clean Air Act that the agency must follow for that type of pollution, he said.

“It’s not an end-run, and it’s not a boot strap,” responded U.S. Solicitor General Donald Verrilli, who was defending the EPA. Calculating co-benefits is “a perfectly appropriate way to deal with getting at metals and other pollutants that would be hard to get at directly,” he said.

I’m sure there’s some subtle legal reason why removing the particulates attached to the mercury shouldn’t count, but I’m too simple a soul to see the logic of it. That won’t be an issue if SCOTUS agrees with the DC Circuit about the bigger question of whether or not the EPA had to consider costs in the first place. I’m sure you’ll be shocked to hear that Anthony Kennedy is the swing vote. Let’s hope we get the good Justice Kennedy this time. The good news is that Texas has an abysmal won-lost record on matters like these. But there’s always a first time, so let’s not get too confident.

Voter ID plaintiffs ask for no stay

They’ve filed their response to the Fifth Circuit.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

Attorneys challenging Texas’ voter ID law — which was struck down by a federal judge on Thursday — asked a federal appeals court on Sunday not to allow the state to enforce the law.

In a brief filed with the U.S. 5th Circuit of Appeals, lawyers for plaintiffs including the League of United Latin American Citizens argued that the law was unconstitutional. Attorney Chad Dunn wrote that the law should not take effect, in order to “allow the 2014 elections to go forward under the principles of true democracy.”

The brief came as a response to an emergency motion filed by Texas Attorney General Greg Abbott, who is defending the law. Abbott, who is also the Republican gubernatorial candidate, asked the appellate court’s mostly conservative judges on Friday to stay the lower court’s ruling and keep the voter ID law in effect for the November election.

The Chron story, which suggests we could get a ruling as soon as today, is more detailed.

The U.S. Department of Justice argued that relaxing the state’s identification law will not make any voters ineligible to cast a ballot.

“Registered voters who show up at the polls with only a form of S.B. 14 photo ID can, consistent with prior practice, cast a regular ballot,” the government wrote in its filing.

But Abbott, who is favored to defeat Democrat Wendy Davis in next month’s gubernatorial election, said in the filing that the law’s reversal creates sudden uncertainty.

“The district court’s opinion injects doubt where for 15 months, and three statewide elections, there had been certainty: Texas voters have understood that they are required to show up the polls with photo IDs, and Texas poll workers have understood the requirement to check for them,” wrote the state.

The decision to let the voter ID law stand this November will be made by three judges on the New Orleans-based 5th Circuit, generally considered a conservative court. The losing party could then either appeal that ruling to the full circuit bench, to the Supreme Court, or choose to do both. Either way, the ruling would eventually likely trickle up to the Supreme Court, who would quickly decide whether voters must present this identification.

Rick Hasen, an election law expert at the University of California in Irvine, predicted that the 5th Circuit would rule in favor of Texas and issue a stay. Hasen said the relevant legal precedent, set in Purcell v. Gonzalez, shows that the courts have frowned upon changing election law right before voting begins.

“There’s a pretty good chance the court’s going to reverse the judge’s order and say: Regardless of whether you’re right or wrong on the legality of the voter ID law, for purposes of this election it’s going to stay in place,” Hasen explained.

See here and here for the background. I realize this would likely not be considered relevant by the Fifth Circuit, but it should be noted that the DC federal court also strongly rejected the voter ID law, though they didn’t get into the question of discriminatory intent since the burden in that case was on the state to prove the law wasn’t retrogressive. To use a technical legal term, two different courts found that this law stinks. Seems to me that’s a pretty compelling argument for not allowing said law to go into effect while the appeals process plays out. We’ll see what persuades the Fifth Circuit.

Court rules for the EPA against Texas again

Another win for the environment.

A federal appeals court on Tuesday upheld the Obama administration’s new rules that for the first time limit emissions of mercury and other harmful pollutants from coal- and oil-fired power plants.

In a split decision, the U.S. Court of Appeals for the District of Columbia Circuit rejected a Texas-based challenge to the regulations, saying the federal government acted reasonably to protect the environment and public health from poisonous gases and cancer-causing chemicals released into the air by the burning of fossil fuels.

Developers of the White Stallion Energy Center, a proposed power plant about 90 miles southwest of Houston, challenged the federal regulations, arguing that the new limits would be too burdensome and thus prevent them from securing financing for the project. Several industry groups and 22 states, including Texas, joined the fight.

But a divided three-judge panel ruled that federal law and previous court decisions do not require the Environmental Protection Agency to consider cost when imposing new regulations on electric utilities.


At the time the EPA finalized the rules in 2012, Texas was home to seven of the top 16 mercury-emitting coal plants in the nation, an Environmental Defense Fund analysis found.

“There is no other state that is going to get as much public health benefit than Texas from the mercury rule,” said Al Armendariz, a former EPA official who now leads the Sierra Club’s anti-coal campaign in the state.

See here and here for some background. I’ve long since lost track of which lawsuit by Texas against the EPA is about what, and I don’t think I have any previous blogging on this specific case, but it doesn’t matter. It’s all of a piece, and it’s all about whether we make the polluters be responsible for their actions or we give them a free pass. The EPA counters claims that these regulations are too costly for business with evidence that the health benefits for everyone else will outweigh those costs. That will never satisfy the polluters, of course, and I presume they’ll appeal this first to the entire DC court, then to SCOTUS. It’s a nice win for now but it’s far from over. The LA Times, the DMN BizBeat blog, the Texas Green Report, and the EDF, which has a separate statement beneath the fold, have more, while Wonkblog reminds us of the disproportionate effect of industrial pollution on minority neighborhoods.

Environmental Defense Fund applauds today’s ruling by the U.S. Court of Appeals in Washington, D.C., denying legal challenges to the U.S. Environmental Protection Agency’s (EPA) life-saving Mercury and Air Toxics Standards (MATS). Today’s court decision rejects flawed legal claims by Texas Attorney General Greg Abbott, one of the opponents of EPA’s vital clean air safeguards for our communities and families.

Attorney General Abbott has sued the federal government 31 times since 2004, needlessly costing Texan taxpayer’s nearly $4 million.

The EPA emission standards at issue establish the first nationwide emission limits on the mercury, arsenic and acid gases discharged from the U.S. fleet of existing coal- and oil-fired power plants, the single largest source of these toxic airborne contaminants.

Mercury exposure can impair the brain development of infants and young children. According to the EPA, each year more than 400,000 infants are born with elevated mercury levels in their blood, but the MATS standards will eliminate 90 percent of mercury emitted from coal-fired power plants. In Texas, the rule will annually prevent up to 1,200 premature deaths, while providing between $4 billion to $9.7 billion in health benefits in 2016 and each year thereafter.

“Today’s decision comes as an unquestionable victory for Texans who care about vital clean air safeguards and protecting our most vulnerable citizens – young children and pregnant women. Rather than waste taxpayer’s money and protect the interests of big fossil fuel companies, Greg Abbott and other state leaders should champion life-saving measures that protect the health and well-being of Texans.”

Redistricting and voter ID lawsuit updates

From Texas Redistricting, a typically thorough look at where things stand with redistricting and voter ID litigation in the three courts – San Antonio, where the redistricting litigation has been ongoing and is likely due for some action; Corpus Christi, where the recent voter ID lawsuits were filed and now stand, likely pending consolidation; and the DC Circuit Court, which still has some unfinished business on redistricting but no longer on voter ID. Read it and stay up to date on what’s happening.

There are now some new players in the voter ID litigation. First up is the Texas League of Young Voters, who filed papers to join the fray on Monday.

The filing contends that the state’s voter ID law would disproportionately affect students like Imani Clark, a student at historically black Prairie View A&M University in Waller County.

The filings said that Ms. Clark did not drive and did not possess any of the seven forms of ID required by S.B. 14, though she does have a student ID with which she had been able to vote in past elections.

The League contends that the law violates both section 2 of the Voting Rights Act and the 14th and 15th amendments of the Constitution.

See the filing, which will be opposed by the state of Texas, here. The state of Texas also opposes the intervention by the Justice Department, not that this should surprise anyone. The DOJ, meanwhile, wants the court to combine the cases and postpone some of the deadlines. I expect that will be granted.

Also getting in the voter ID litigation action is the city of Austin.

A unanimous council, noting that the U.S. Supreme Court’s decision to strike down portions of the Voting Rights Act of 1965 cleared the way for the voter-ID law, directed the city’s lawyers to look into joining a lawsuit already filed U.S. Rep. Marc Veasey, D-Fort Worth, as well as any challenges to the voter law by the U.S. Department of Justice.

The council also directed the city staff to explore other steps, such as establishing places where residents without proper identification could secure a provisional ID for voting purposes.

The council’s resolution states the voter-ID law “may present a barrier to eligible citizens who intend to vote, especially minorities and those who may have recently moved or gotten married or divorced and may not realize that they need to update their identification.”

Good for Austin. I’d like to see a lot more cities join them in this.

The Atlantic has a good overview of the stakes and the more inflammatory rhetoric being used in the current legal battles.

What we are seeing now is a political war that will be waged in legal terms in part because of the Supreme Court’s Shelby County ruling and in part because of all of the voter suppression efforts that preceded it (in Texas and around the country). Just because state officials are offended by a federal lawsuit doesn’t mean the state law they seek to defend is constitutional. And just because a state law makes it harder for people to vote doesn’t necessarily make it unconstitutional. The post-Shelby County world has arrived, not with a quick Congressional fix to restore key voting protections for minorities but with still more politically tinged litigation.

Read the whole thing. In addition to the state-versus-federal lawsuits, there is now litigation in Galveston County over its proposal to reduce the number of constable and JP precincts, and I feel confident that a lawsuit over the Pasadena City Council redistricting plan is imminent. These are good days to be an election lawyer, that’s for sure.

Texas loses another lawsuit against the EPA

Getting to be a habit.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

A federal appeals court on Friday rejected a legal challenge by Texas and Wyoming to the U.S. Environmental Protection Agency’s efforts to curb greenhouse gas emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, in a 2-1 vote, said the states and various industry groups did not have standing to sue because they could not show that they had suffered an injury or that a ruling throwing out the EPA plan would benefit them.

The decision comes after the same court upheld the EPA’s first wave of greenhouse gas regulations in 2012, and is another win for the EPA, which has a strong track record in the courts in challenges to its rules, particularly those targeting greenhouse gas emissions.

“The states and industry groups trying to block EPA from curbing carbon pollution under the Clean Air Act are on a long losing streak,” said David Doniger, climate policy director for the Natural Resources Defense Council.

Friday’s decision concerned a challenge to the EPA’s efforts to make states include carbon dioxide and other greenhouse gases when they issue permits to industrial facilities setting limits on various types of pollution they emit.


Frank O’Donnell, president of the not-for-profit group Clean Air Watch, said Friday’s ruling strengthens the hand of the EPA as it starts to implement President Barack Obama’s climate action plan. Obama in June directed the agency to write rules to curb carbon emissions from the country’s fleet of existing power plants.

But O’Donnell said Texas and other states opposed to federal environmental regulations are likely to drag their heels when forced to comply with EPA timelines.

“I predict they will be late filing their plans, due in 2016 under the scenario the president set forth, and will dare the federal government to intervene,” O’Donnell said.

You can see the ruling here, via the Environmental Defense Fund. There have been so many of these lawsuits that I have a hard time keeping track of which one is which, so I’ll just turn this over to the Sierra Club for the last word.

“The U.S. Supreme Court and other federal courts have now ruled in favor of controlling climate disrupting-pollution nine times,” said Cyrus Reed, conservation director with the Lone Star Chapter of the Sierra Club. “Attorney General Greg Abbott and Commissioner Bryan Shaw preferred to spend their time and resources on lawsuits doomed to fail, regardless of the consequences for Texas’s economy, rather than cooperating with the Environmental Protection Agency and upholding the law. Carbon pollution protections are the law, even in Texas. After three years of damaging droughts, it is time for the large polluters and state agencies alike to join the environmental community in working to reduce emissions.”

“While Texas officials were wasting taxpayer dollars with fights against the federal government, Texas legislators were quietly updating state laws in early 2013 to require TCEQ to regulate greenhouse gases under the Clean Air Act,” continued Reed. “Abbott and Shaw have spent millions of taxpayer dollars on these frivolous lawsuits rather than letting regulators do their jobs.”

Be sure to tell Latino voters about this one, Greg.

Abbott asks for the interim maps

Very interesting.

The recently dormant Texas redistricting issue woke up Thursday with a disagreement between the state’s attorney general and a Latino legislators’ group.

Texas Attorney General Greg Abbott has called on the Legislature to make the current — and interim — redistricting maps permanent.

Abbott’s letter to Texas House Speaker Joe Straus — which was dated March 8 and just uncovered by Michael Li, a redistricting expert and author of a redistricting blog — said if the interim maps become permanent, then further intervention from federal courts might not be necessary. That, Abbott’s letter said, could “ensure an orderly election without further delay or uncertainty.”

“Enacting the interim plans into law would confirm the Legislature’s intent for a redistricting plan that fully comports with the law, and will insulate the State’s redistricting plans from further legal challenge,” Abbott wrote.

The Mexican-American Legislative Caucus, or MALC for short, responded in a filing with the San Antonio federal court that approved the interim maps. MALC said the interim maps for the Texas House and the U.S. House of Representatives still might not comply with the U.S. Voting Rights Act.

“The attempt of the State of Texas to circumvent the judicial process through legislation that fails to provide a final remedial redistricting plan for Texas House and Texas Congressional Districts is even more reason for this Court to begin the process that will lead to a final and just remedial plan for future Texas elections,” MALC said in its filing.

Here’s the Texas Redistricting post the story refers to, and the MALC advisory that contains and objects to Abbott’s letter. I had previously noted the earlier Texas Redistricting post that pointed out the late-filed bills to make the interim maps permanent. At the time, I wondered if Republican Sen. Kel Seliger and Rep. Drew Darby had consulted with Abbott about this before they filed. Now I know. What’s curious about this is that Abbott’s intent in appealing the DC court’s ruling that denied preclearance to the Supreme Court was to get the original legislatively-drawn maps enacted for 2014. I’m not sure what he has in mind by changing direction in this way. Is it a hedge against a potentially adverse ruling from SCOTUS, or is there something else to it that I’m not seeing? Burka thinks he’s playing partisan games, but I still can’t see towards what end. Whatever the case, this also answers my question about whether the plaintiffs would accept that deal as insurance against Section 5 being gutted. I can’t wait to see what comes next.

Is there more redistricting for Texas in the cards?

The short answer is it depends.

For the most part, Republicans are content to keep the interim map used for the 2012 elections — if the courts allow it.

“I don’t sense a lot of anxiousness from either the state or congressional side to open back up congressional redistricting,” said Chris Perkins, a GOP pollster tasked with redrawing the Texas map in 2003. “But if they are forced to act, then they’ll have to do something.”

Privately, Republicans say they expect tweaking to incoming Democratic Rep. Pete Gallego’s south Texas district to include more Hispanics. But the political effect would be minimal and the district would remain competitive.

Democrats and minority groups hold out hope for a redraw that includes new favorable districts around Dallas and Austin. They argue that explosive minority growth in those areas demand new districts.

“I think there’s a good chance the court will make some changes,” said Michael Li, a Texas redistricting expert and Democratic attorney. “I think there’s a strong argument that something needs to be done in central Texas.”

This story is specifically about Congressional redistricting. Democrats hope for further tweaking of the State House map as well. As we know, the brief filed for the state by the Attorney General said that all the issues raised by the DC Court had already been addressed in the interim map by the San Antonio Court, so there’s nothing left to do. There’s no disagreement on that point for the Senate map, but the other two are still in dispute. The main thing I take away from this story is that there doesn’t appear to be any appetite for trying to redo the maps in a more Republican direction by the Lege. I’m not surprised by this – honestly, it’s hard to see how the GOP could realistically do better than they did without violating the DC Court’s ruling – but you never know. Here at least it looks as though if there is to be any further revising, it will be because the plaintiffs want it.

Parties split on waiting for SCOTUS

Texas Redistricting:

Lawyers for the Justice Department and intervenors in the Texas voter ID case told the court yesterday that the court should put off consideration of Texas’ claim that section 5 of the Voting Rights Act is unconstitutional until the Supreme Court decides the pending Shelby County v. Holder case next year.

That case involves a challenge to the statute by Shelby County, Alabama, contending that Congress acted without sufficient evidence in 2006 in extending section 5 coverage for another 25 years and that the formula for determining what states and sub-divisions are subject to section 5 is outdated.

The State of Texas disagreed and told the court that it should go ahead and decide the constitutional question being raised in the Texas case or otherwise its voter ID law “will be stuck in limbo until the end of the current Supreme Court term.”

The state told the court that “while Texas’s constitutional claims overlap with Shelby County’s to some extent, they may present distinct arguments (such as a challenge to the “non-retrogression” doctrine) whose resolution will not be affected or informed by the opinion in Shelby County.

In the alternative, the state asked the court to enter a final order denying preclearance so that the state could go ahead and separately appeal the ruling on that portion of its claims to the Supreme Court.  The intervenors told the court the state had missed its window to request such relief.

Here are the parties’ position papers:


State of Texas


I had thought that both sides would want to wait for SCOTUS, but clearly I was wrong. Now the DC Court has to decide which course of action to take, and as yet there’s no timeline for that. I would guess there may need to be a hearing for oral arguments before they make up their minds, but we’ll see about that. In the meantime, briefs are due tomorrow to the San Antonio court for the same should we wait or should we proceed question regarding new redistricting maps – more on that here. There I thought the intervenors would want to go ahead while the state wanted to wait, but now I’ll have to rethink that. PDiddie has more.

Federal court denies preclearance on all redistricting maps

The long-awaited ruling in the preclearance lawsuit by the DC Court has been handed down, and it’s a clean sweep for those who claimed that the new maps violated the law.

Texas lawmakers didn’t comply with the Voting Rights Act when they drew new maps for congressional, state Senate and state House districts, a federal court in Washington, D.C., ruled Tuesday.

“Texas … seeks from this court a declaratory judgement that its redistricting plans will neither have ‘the purpose nor will have the effect of denying or abridging the right to vote on account of race or color, or [language minority group]”, the judges wrote. “We conclude that Texas has failed to show that any of the redistricting plans merits preclearance.”


The court wasn’t ruling on interim maps drawn by federal judges — the maps in use for the current election — but on those drawn by state lawmakers last year. Lawyers are still looking through the opinions for anything that might disrupt the current elections.

Nina Perales, litigation director for MALDEF — the Mexican American Legal Defense and Education Fund — said there might not be time to draw new maps before the November elections even if they’re warranted. One question is whether problems exposed in the plans drawn by legislators “infected” the plans drawn by the federal judges in San Antonio. “I don’t think it’s feasible to change the lines for November,” she said. Perales called the federal court ruling “the final nail in the coffin” for the plans drawn by state lawmakers, especially since the San Antonio judges outlined several other legal problems with those same maps earlier this year.

The outcome of Abbott’s appeal and the analyses being done by the various parties in the redistricting legislation will determine which lines, if any, get redrawn before the 2014 elections.

Some have made up their minds. “The question of whether we’ll go back to the district court and ask for additional relief, the answer is yes,” said Jose Garza, attorney for the Mexican American Legislative Caucus. “Will we ask if this will be implemented for the November elections? We’re still analyzing that.”


“We conclude that Texas has not met its burden to show that the U.S. Congressional and State House Plans will not have a retrogressive effect, and that the U.S. Congressional and State Senate Plans were not enacted with discriminatory purpose,” the judges said in their opinion. “Accordingly, we deny Texas declaratory relief. Texas has failed to carry its burden that Plans C185, S148, and H283 do not have the purpose or effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group under section 5 of the Voting Rights Act.”

You can read the full opinion here, and I encourage you to do so, at least through the conclusion on page 72. There’s a lot of other analysis out there, and I’ll link to it later in this post, but these are the highlights as I see them:

– The opinion was unanimous on all points except for whether the original CD25 (the districts that were in place for elections through 2010 are referred to as “benchmark” districts, while the ones in the state redistricting plans are “enacted”) qualified as a coalition district, i.e., one in which minorities had the ability to elect a candidate of their choice, and on whether the overall Congressional map was retrogressive. The San Antonio court, by contrast, ruled 2-1 in the suit that led to the creation of the interim districts that were later tossed out.

– The court found evidence of discriminatory intent in the Congressional and Senate maps. The latter is significant because they did not find that SD10, the only district at issue in that map, met the criteria for being a coalition district. Further, note that the Justice Department did not specifically contest the Senate map – the other intervenors did – meaning that in this case the state got a harsher result than the would have by going to the Justice Department for preclearance instead of filing the lawsuit with the DC Court as they chose to do.

– The court did not specifically rule on the issue of discriminatory intent in the House map because they ruled it to be retrogressive. However, they did make the following remarkable comment about the House map and how it was drawn:

First, the process for drawing the House Plan showed little attention to, training on, or concern for the VRA. See, e.g., Trial Tr. 61:1-66:23, Jan. 20, 2012 PM. And despite the dramatic population growth in the State’s Hispanic population that was concentrated primarily in three geographic areas, Texas failed to create any new minority ability districts among 150 relatively small House districts.

These concerns are exacerbated by the evidence we received about the process that led to enacted HD 117. As detailed above, the mapdrawers modified HD 117 so that it would elect the Anglo-preferred candidate yet would look like a Hispanic ability district on paper. They accomplished this by switching high-turnout for low-turnout Hispanic voters, hoping to keep the SSVR level just high enough to pass muster under the VRA while changing the district into one that performed for Anglo voters. This testimony is concerning because it shows a deliberate, race-conscious method to manipulate not simply the Democratic vote but, more specifically, the Hispanic vote.

Finally, the incredible testimony of the lead House mapdrawer reinforces evidence suggesting mapdrawers cracked VTDs along racial lines to dilute minority voting power. Texas made Interiano’s testimony the cornerstone of its case on purpose in the House Plan. Trial Tr. 45:22-25, Jan. 17, 2012 AM (“[O]ur [discriminatory purpose] case rests largely on the credibility of one person. His name is Gerardo Interiano.”). Interiano spent close to a thousand hours — the equivalent of six months of full-time work — training on the computer program Texas used for redistricting, id. at 131:3-5, yet testified that he did not know about the program’s help function, id. at 85:18-25, Jan. 25, 2012 PM, or of its capability to display racial data at the census block level, id. at 93:13-19, Jan. 17, 2012 PM. As unequivocally demonstrated at trial, this information was readily apparent to even a casual user, let alone one as experienced as Interiano. See id. at 93:1-15; id. at 88:5-89:17, Jan. 25, 2012 PM. The implausibility of Interiano’s professed ignorance of these functions suggests that Texas had something to hide in the way it used racial data to draw district lines. The data about which Interiano claimed ignorance could have allowed him to split voting precincts along racial (but not political) lines in precisely the manner the United States and the Intervenors allege occurred.

This and other record evidence may support a finding of discriminatory purpose in enacting the State House Plan. Although we need not reach this issue, at minimum, the full record strongly suggests that the retrogressive effect we have found may not have been accidental.

Ouch. That starts on page 70, if you’re curious. The reason why the rulings on discriminatory intent are important is explained by Rick Hasen:

The evidence of discriminatory intent is important not just for the likelihood that the Supreme Court will affirm this decision even if it disagrees on some aspects of the retrogression standard. It also serves as some evidence which could be used to argue, in the Shelby County case or elsewhere, that covered jurisdictions still discriminate on the basis of race in making voting-related decisions. (If this was not done to Anglo Democrats, the evidence is even stronger than if it could be explained on the basis of pure partisanship.) The Court was careful to note that Texas did not challenge the constitutionality of section 5 in this case. And the Court rejected a number of Texas’s arguments that it should read section 5 narrowly to avoid a constitutional question. Whether the Supreme Court will agree with the district court on this point is anyone’s guess. Indeed, this case could be mooted if the Supreme Court strikes down Section 5 (in the Shelby County case or another) before the Court decides this case on the merits.

No question that the Republicans treated Sen. Wendy Davis shabbily, but they really stuck it to the three African-American members of Congress. Read the excerpt Hasen highlights to see what I mean. Indeed, read the whole opinion, it’s worth your time. The justices really slap around the state’s main expert, Professor John Alford, and they note repeatedly that the state often simply refused to respond to various arguments made by the intervenors and the Justice Department. It’s quite the bravura performance.

So will any of this affect the 2012 election? Michael Li, who has some brief analysis of the opinion, suggests that it could be done.

Texas Attorney General Greg Abbott has taken the position that the opinion will not affect the November election, which he says will proceed on the interim maps put into place back in February.

On the other hand, it is certainly possible to see a move to adjust those interim maps in the San Antonio court. For example, CD-23 arguably could be restored to its full benchmark configuration fairly easily. Similar arguments might also be made with respect to HD 117 and 149, which are wholly contained in their respective counties (to the extent redistricting plaintiffs think that not enough changes were made to those districts in the interim maps).

Other changes would seem harder. But with control of Congress potentially on the line, lots of people are going to be looking at the opinion closely over the next few days.

Changes for this year – at least conceptually – are not out of the question. In 1996, for example, the three-judge panel ordered jungle primaries in a number of congressional districts which were held on the date of the November election, with a runoff a month later.

Some of the intervenors are leaning in that direction, as you saw in the Trib story. AG Abbott will appeal to the Supreme Court, which may or may not have an effect on that. He’s also seeking to gut the Voting Rights Act in the process, as Hasen alluded to above. On a side note, we may also get a ruling in the Voter ID preclearance case, since it would need to be precleared by August 31 to be able to be implemented this year.

So that’s where we stand for now. The Trib story has a bunch of reactions, as does Texas Redistricting. Hair Balls, BOR, Stace, PDiddie, DBN, and Socratic Gadfly have more.

UPDATE: Here’s more from SCOTUS Blog, which reminds me that the opinion also repeatedly hammered on Texas’ long history of losing redistricting lawsuits. Texas Redistricting has a roundup of other links.

That other big lawsuit

In case you missed it, there was another big ruling last week that will have a profound effect on Texas.

Ship Channel crica 1973

A federal appeals court Tuesday upheld a finding by the Environmental Protection Agency that greenhouse gases pose a public health threat and require potentially costly limits from vehicles, power plants and other industrial sources.

In an unanimous decision, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the federal agency is “unambiguously correct” in its use of the Clean Air Act to regulate carbon dioxide and other gases linked to global warming as pollutants – a stinging rebuke to industry and 14 states, led by Texas, that had sued to block the landmark rules.

Such rules could have a profound impact on Texas, which emits more carbon dioxide and other heat-trapping gases than any other state.

“This is a pretty resounding victory from EPA’s perspective,” said Tracy Hester, who leads the energy, environment and natural resources program at the University of Houston Law Center. “The sweep and breadth of this decision will make it hard for the states to pick it back up.”

As was the case with the Affordable Care Act, the Republicans in Texas bet big on winning in court, and as was the case with the Affordable Care Act they lost. In this case they still have hope for something more favorable from SCOTUS, but not this term, and they’ll be up against a unanimous appellate ruling. If the state had done a better job taking care of business this might not be such a big deal, but we all know how that has gone. The Environmental Defense Fund has more.

Bench slaps come in threes

In addition to the tongue lashing they got from the DC Court in the voter ID preclearance trial, the Greg Abbott gang took fire from judges in two other cases recently. Trail Blazers has the highlights. First, some incredulity from the Court of Criminal Appeals:

"Objection Overruled", by Charles Bragg

Last Wednesday, Solicitor General Jonathan Mitchell tried to convince the Texas Court of Criminal Appeals that death row inmate Hank Skinner should not be allowed to have DNA evidence from the crime scene tested. He argued that the evidence was overwhelming and that Skinner was just trying to delay his execution.
Judge Michael Keasler, and indeed most of his colleagues on the court, expressed consternation. “You really ought to be absolutely sure before you strap a person down and kill him,” Keasler said. The other judges pointed out that the law had been recently revised to make it clear that courts should give deference to post-conviction testing of DNA evidence in capital murder cases.

And Judge Elsa Alcala also shot down Mitchell’s assertion that the case against Skinner was air-tight. “It’s not overwhelming; it’s circumstantial,” she said.

In Texas, where more than 40 people have been freed based post-conviction DNA testing, the appeal judges had little patience with the argument that Skinner’s test wouldn’t change anything.

As the Trib reported, Justices Cathy Cochrane and Cheryl Johnson also piled on. Remember, this is the CCA, the most pro-prosecutor group outside the Texas District & County Attorneys Association in the state going after the AG’s arguments like this. It’s like being chided by Antonin Scalia for being too originalist.

They also found an item in the Fifth Circuit ruling that upheld the injunction Planned Parenthood got in their lawsuit over funding for the Women’s Health Program that I had not seen before:

The judges also questioned why the state has never addressed an important precedent where Planned Parenthood prevailed in a similar defunding case.

Again the judges wrote: “Despite the plaintiffs’ and the district court’s having relied extensively on that authority, which binds this panel to the extent it is applicable, the State never mentioned it (as far as we can tell from the record) in the district court and did not refer to it in any way in its motion for stay pending appeal.”

It’s almost as if the facts aren’t that important to Abbott’s gang. Maybe they expect to win by default, I don’t know. I’m just enjoying the spectacle. In the meantime, they have responded to their latest bench-slapping by whining that the judges are wrong to blame them for the delays in the voter ID trial. I’m sure that will get them right back into the court’s good graces.

Voter ID trial likely to be delayed

And if it is, it’s all the fault of the State of Texas.

Still the only voter ID anyone should need

In another blow to advocates of Texas’ voter ID law, a federal district court ruled today that the law will likely not be in place by the November general election unless the state turns over requested documents by Wednesday.


Late last month, DOJ asked the district court in Washington, D.C., that will hear the case to postpone the trial. It is scheduled to start July 9. In an order issued today, the court said that Texas has not acted with a sense of urgency.

“Rather than engaging in expedited discovery consistent with its stated goal, Texas has taken steps that can only be interpreted as having the aim of delaying Defendants’ ability to receive and analyze data and documents in a timely fashion,” the court stated. “Texas has repeatedly ignored or violated directives and orders of this Court that were designed to expedite discovery, and Texas has failed to produce in a timely manner key documents that Defendants need to prepare their defense.”

The court gave the state one final chance today, with very specific conditions, to turn over the information the Department of Justice is seeking. The department is specifically asking for databases and voter information it says will prove the voter ID measure will have a “disparate and retrogressive” impact on minority voters.

“If any of these deadlines or conditions cannot or will not be met, then the delays or ancillary litigation that will result will either make a July 9 trial impossible at all, or impossible without undue and manifest prejudice to the United States and Defendant-Intervenors,” the order instructs.

The state must turn over to the government by Wednesday proof that it has discussed this month’s deadlines with document custodians, technology staff, legal and administrative staff and prove that it can meet every subsequent trial deadline.

Additionally, the state must produce legislators that have been subpoenaed, something Abbott tried to block last month.

Texas Redistricting has the court’s order, which among other things notes that the defendants – that is, the Justice Department – have “worked tirelessly in discovery so that this case may be tried the week of July 9, 2012” and that the Court “would be well within its discretion to continue the July 9 trial date, to impose monetary sanctions against Texas, or to keep the July 9 trial date and impose evidentiary sanctions such as an adverse inference upon Texas”. This is what they call a bench-slapping. PDiddie wonders what AG Abbott is trying to accomplish by its foot-dragging while insisting on a speedy trial, but I think the TDP’s explanation is the correct one: The state has something to hide, and they know it. We’ll see for ourselves tomorrow what that might be.

Delay in voter ID trial requested

From Michael Li:

Still the only voter ID anyone should need

The only voter ID anyone should need

Intervenors in the Texas voter ID case asked the court today to delay the scheduled July 9 start of trial in the case, citing discovery delays by the State of Texas.  The intervenors said the delays had already put the parties at least five weeks behind schedule.

According to the motion:

From the outset, Texas has asked for speed from others, but conducted itself as if time were not of the essence … Despite months of lead time, Texas has not been prepared to meet the very accelerated scheduled for which it petitioned this Court.

The intervenors cited to what they said was the insistence of the state on formal discovery before producing even basic documents such as transcripts of the legislative process.

More critically, they said the state had yet to produce “essential commuter data” from its voter registration, driver’s license, and concealed weapon permit databases that the intervenors said they needed to prepare detailed expert reports on the effect of the law on minority voters.  They said those problems were compounded by misrepresentations by the state about the information maintained in its databases and the fact that, even when the state had produced information, it delayed in providing the intervenors with the passwords necessary to access the data.

The intervenors also said that the state’s repeated assertions of broad evidentiary privileges had “resulted in weeks, if not months, of delay in discovery.”

The Justice Department has made the same request, echoing the intervenors’ arguments:

Texas has failed to produce critical discovery in a timely manner or at all, and has asserted wide-ranging, shifting, and sequential privilege claims that will continue to require significant resources from the parties and the Court to resolve. These discovery delays have been caused by the State’s own conduct and strategic decisions, and have occurred despite the Attorney General’s best efforts to facilitate the expedited litigation of this matter. While the Attorney General shares the parties’ and the Court’s interest in resolving this matter as quickly as is reasonable, the State’s litigation decisions and discovery delays have rendered a July 9, 2012 trial date both impractical and severely prejudicial to the Attorney General … The State of Texas, which professes that ‘implementing SB 14 for the November 2012 elections is the paramount goal of this litigation,’ (ECF 83) has taken precisely the opposite approach at every step.

Ouch. There are stories about this now in the Express News and Statesman; you can see the intervenors’ filing here and the DOJ’s filing here. A response from the state is due today. One of the reasons for delay has been the state’s insistence that legislators be shielded from depositions; last week the court ruled that in general legislators would not be exempted from being deposed but could ask to be excluded on a case by case basis. No doubt that will drag things out further. Note here that the state’s modus operandi has been similar to that for redistricting. They took their time producing maps, then took the long road for preclearance, and finally threw the entire election schedule into chaos by pursuing and getting a stay from SCOTUS on the original interim maps, all the while complaining about how long this was taking. Note also that the state took its sweet time responding to the Justice Department’s requests for data during the preclearance process for voter ID. It’s entirely their responsibility that it’s this late in the calendar. I see no reason why the court should give them any special dispensation here. This trial will take as long as it takes, and if you don’t like it that’s just tough.

On a side note, because I don’t have any better place to fit this in, AG Greg Abbott’s office accidentally exposed the Social Security numbers of 13 million registered voters in Texas. Thankfully, the goofup was caught before anything that shouldn’t have been was made publicly available. Oops.

Texas continues its fight against clean air

The state of Texas was back in court last week, arguing for its right to pollute other states’ air.

This is what the Ship Channel looked like in 1973

The latest round in the state’s fight with the Environmental Protection Agency will be heard by the U.S. Court of Appeals for the District of Columbia, often considered the nation’s most influential after the Supreme Court.

In the case, industry groups and 14 states, led by Texas, are challenging the legality of the Cross-State Air Pollution Rule, which imposes caps on nitrogen oxide and sulfur dioxide from coal-fired power plants in eastern states. Texas, for one, fears some utilities will shutter plants to comply with the rule, threatening the state’s ability to “keep the lights on.”

The EPA says the rule is necessary to reduce lung-damaging pollution that causes thousands of premature deaths and respiratory illnesses each year around the power plants and in downwind states.

“This is a classic instance of why air pollution cleanup cannot be left solely to the states,” said Frank O’Donnell, head of the environmental group Clean Air Watch.

The oral arguments come nearly four months after a three-judge panel put the rule on hold while the federal appeals court considers its legality.

See here and here for some background. The hearing was Friday, and the only story I could find afterward was this.

In arguments before the U.S. Court of Appeals in Washington, D.C., Friday, a coalition of states, including New York, urged the court to uphold the federal Environmental Protection Agency’s Cross-State Air Pollution Rule that will limit the interstate transport of air pollution that harms New Yorkers’ environment and health. The rule prohibits emissions in one state from significantly contributing to a downwind state’s inability to meet federal air quality standards established to protect public health for two harmful pollutants: fine particulate matter, also known as PM2.5 and ozone. In addition to New York, the state coalition supporting the rule includes Connecticut, Delaware, Illinois, Massachusetts, Maryland, North Carolina, Rhode Island and Vermont. The states are joined by New York City, Philadelphia, Chicago, the District of Columbia, Baltimore, and Bridgeport, CT.

By 2014, the rule is expected to reduce emissions that contribute to smog, asthma and acid rain by millions of tons per year, resulting in up to 2,000 fewer premature deaths each year in New York alone.

“For too long, New York and other states have been harmed by upwind smokestack pollution. It is critical that strong rules protecting the air we breathe are both upheld and enforced,” said Attorney General Eric Schneiderman. “The transport of this kind of air pollution into our state makes it exceedingly difficult for New York to meet federal air quality standards intended to protect public health, resulting in undue hardship for people suffering from asthma and other health conditions. My office stands ready and willing to fight for our ability to maintain healthy air with the reasonable assurance that our efforts won’t be undercut by out-of-state polluters.”

Wouldn’t it be nice to have an Attorney General like that? Some day, I hope. Anyway, it’ll probably be a few months before we get a ruling on this, then whatever gets decided will be appealed to the Supreme Court, which means it’ll likely be at least 2013 before we have an answer. Try not to breathe any more than necessary until then.

Who testifies about voter ID?

That was the question before the federal court on Tuesday.

Still the only voter ID anyone should need

The only voter ID anyone should need

U.S. Justice Department lawyers told a federal three-judge panel Tuesday that Texas legislators should not be shielded from testifying in a voter ID case.

But lawyers for state Attorney General Greg Abbott said deposing statehouse Republicans to determine legislative intent of the new photo ID requirement amounted to a “fishing expedition” by Justice Department attorneys.

The panel — Circuit Judge David Tatel, District Judge Robert Wilkins and District Judge Rosemary Collyer — is expected to rule soon on motions to expedite proceedings.


Texas Solicitor General Jonathan Mitchell said the Justice Department is looking for a statement from a lawmaker that could be portrayed in court as discriminatory intent.

Daniel Freeman, a Justice Department voting rights lawyer, said the state’s claim was baseless. He said Texas failed to meet its burden to show the law would not discriminate against minorities.

According to Michael Li, the court entered an order for more briefing on the matter. From the order:

At oral argument on Texas’s motion for protective order, the United States indicated that it can submit information that provides a factual basis in support of its request for discovery from Texas legislators. The United States is ordered to submit, by no later than April 10, 2012, such information. Texas may respond no later than April 13, 2012. In light of these deadlines, the April 9, 2012 deadline requiring depositions to commence and the April 20, 2012 deadline for the United States to inform the Court whether it intends to assert discriminatory purpose (set forth in the Court’s and Scheduling Orders) are VACATED.

See here for background. There was originally a July 9 trial date scheduled, but the Express News story says that has already been pushed back to a tentative date of July 30, but that’s presumably on the assumption of nobody appealing the ruling on this matter. Which is fine by me – the longer this takes, the less likely anything can be resolved before this year’s election.

Voter ID lawsuit action this week

Tomorrow, the DC Court will hear “oral argument on the State of Texas’ request to block the depositions of 12 Republican legislators who were involved with the voter ID bill, including State Sen. Dan Patrick and state representatives Debbie Riddle and Leo Berman as well as Speaker Joe Straus”.

Still the only voter ID anyone should need

The only voter ID anyone should need

The motion also sought to bar discovery of written communications between members of the Legislature, communications between legislators and their staffs, and communications between legislators and their constituents, regarding the bill.

The motion said that efforts by the Justice Department and intervenors to obtain the documents and depositions were barred by a “long recognized” legislative privilege and “represent[ed] an unwarranted federal intrusion into the operations of the Texas Legislature” that “threaten[ed] to push section 5’s already-questionable incursions on state prerogatives past the constitutional breaking point.”

The state said that recognizing legislature privilege in cases like this would “not interfere with the judicial preclearance process because it does not prevent litigants from establishing that a state law was enacted with a racially discriminatory purpose.” Instead, the state argued that a “racially discriminatory purpose can be determined from publicly available documents, the relevant history surrounding the enactment, and common sense.”

You can see the motion here. Burka was not impressed.

Abbott increasingly acts like a politician instead of a lawyer. His move this week to ask a Washington, D.C. court to allow the legislators involved in the battle over the Voter ID to avoid giving deposition testimony is really putting a thumb on the scales of justice. This is a lawsuit. Why shouldn’t DOJ, as one of the parties, have the right to depose witnesses? What are the federal rules of civil procedure for, if not this? Abbott would scream bloody murder if the shoe were on the other foot and he was attempting to depose witnesses.

According to the Statesman, The U.S. Department of Justice, which is facing off against Abbott’s office in a case in which the Attorney General seeks to have Texas’ voter ID law go into effect for the upcoming elections, has asked to depose or question under oath the Senate author of the voter ID bill, Troy Fraser; the House sponsor, Patricia Harless; and other lawmakers. What is Abbott’s justification for keeping key legislators from being deposed? State’s rights, of course: “an unwarranted intrusion into the operations of the Texas Legislature.” Let me see if I understand this. Requiring legislators to give testimony about the passage of a bill is an unwarranted intrusion into the operations of the Legislature. What does the Legislature do other than pass legislation? What else is “the operations of the Legislature?”

A couple of Burka’s commenters made the points that such internal communications cause Abbott and the state a fair amount of heartburn during the redistricting preclearance trial, and that some of the legislators Abbott is trying to protect, including SB14 sponsor Sen. Troy Fraser, weren’t exactly articulate and knowledgeable about the legislation they were pushing at the time it was being debated. The Justice Department filed its response on Thursday.

The department argues however, that: “Discovery seeking to determine whether the state can meet its burden that the change was not motivated by discriminatory purpose is an appropriate inquiry. Therefore, the discovery at issue here is relevant. Texas bears the burden of establishing that SB 14 has neither a discriminatory effect nor a discriminatory purpose.”

It adds that there has never been any state legislative “privilege identified in the federal rules of evidence and the D.C. Circuit has never recognized one.”

Indeed, the DOJ quoted Judge Rosemary Collyer from the redistricting preclearance trial on that point in its response. The numerous intervenors in the case also filed a response. The state has till today to respond to the response, then there will be the status conference tomorrow. The trial itself is scheduled for July 9, but the constitutional issues the state wants to bring up won’t be addressed until and unless preclearance is denied, so it’s unlikely they can be heard in time for a final ruling this year. A busy and eventful year just keeps getting more so.

The numbers in the “deal”

As I start to type this I have no idea if the “deal” that was announced earlier today will be in effect or on the trash heap. I think it’s instructive to look at the numbers in the proposed maps anyway, since they give a good idea of how much the state was willing to concede. Let’s start with Congress. From a strictly Democratic perspective, here’s how I see it:

Dist Incumbent McCain Obama Wainwright Houston =================================================== 09 A. Green 23.42 76.12 22.06 76.33 15 Hinojosa 41.84 57.30 37.30 60.00 16 Reyes 34.59 64.39 30.15 66.55 18 Jackson Lee 22.89 76.57 21.61 76.71 20 Gonzalez+ 40.64 58.23 37.70 58.60 23 Canseco* 49.27 49.88 44.99 51.68 28 Cuellar 40.97 58.28 35.27 61.28 29 G. Green 37.04 62.22 30.34 67.66 30 Johnson 21.07 78.33 19.74 78.58 33 Open 30.64 68.57 27.18 70.54 34 Open 39.06 60.00 32.84 63.62 35 Open 35.47 63.18 32.55 63.10 06 Barton* 57.03 42.19 53.58 43.75 10 McCaul* 56.17 42.59 53.10 43.23 14 Paul*+ 57.03 42.12 49.70 47.52 25 Doggett 56.05 42.73 52.14 43.54 27 Farenthold* 58.95 40.12 50.85 45.75 31 Carter* 55.80 42.54 53.26 42.40 32 Sessions* 55.05 43.83 53.36 43.82

* = Republican incumbent
+ = Not running for re-election

For comparison sake, here’s my analysis of the original interim map and of the Lege-drawn map. What was originally 26-10 in favor of the GOP, then briefly became 23-13, is now either likely somewhere between 25-11 and 23-13, depending on if Rep. Quico Canseco can hold on and if Nick Lampson can win CD14. Note that this is more or less the screw-Doggett map with new Dem districts in the D/FW area and in South Texas, which if it stands might put the kibosh on Joaquin Castro’s assignment for the DCCC and would leave Roger Williams in the cold while bringing Michael Williams back into the game. Smokey Joe Barton gets a little help, Blake Farenthold no longer has to worry about a Harris County challenger, and the heir apparent to Charlie Gonzalez is up in the air.

And here’s the State House:

Dist Incumbent McCain Obama Wainwright Houston =================================================== 22 Deshotel 34.77 64.73 30.66 67.92 23 Eiland 51.35 47.77 42.99 54.22 27 Reynolds 29.88 69.63 28.96 69.55 30 Morrison*+ 50.26 48.99 42.24 54.74 31 Guillen 22.12 77.42 15.75 81.00 34 Scott* 46.93 52.17 38.90 57.76 35 Aliseda*+ 35.74 63.30 31.87 64.99 36 Munoz 26.39 72.85 23.01 75.08 37 Oliveira 31.33 67.52 25.82 69.67 38 Lucio 34.01 64.67 28.74 67.02 39 M.Martinez 26.86 72.35 23.17 74.63 40 Pena*+ 24.43 74.81 20.13 77.42 41 Gonzales 42.16 57.05 37.83 59.68 42 Raymond 28.91 70.56 20.00 76.31 43 Lozano 48.82 50.51 40.00 56.79 46 Dukes 21.51 77.04 20.50 74.99 48 Howard 37.53 60.77 37.52 56.86 49 Naishtat 24.26 73.67 24.04 69.21 50 Strama 38.01 60.27 36.95 57.51 51 E.Rodriguez 17.84 80.40 16.47 77.69 54 Aycock* 51.20 47.93 47.97 49.01 74 Gallego+ 41.15 57.91 34.93 61.32 75 Q'tanilla+ 25.14 74.13 21.64 75.42 76 N.Gonzalez 23.86 75.15 19.18 78.00 77 Marquez 34.56 64.25 30.18 66.08 78 Margo* 43.64 55.31 39.57 56.84 79 Pickett 34.62 64.52 29.83 67.13 80 T.King 48.65 50.76 41.30 55.87 90 Burnam 29.89 69.40 25.82 72.00 95 Veasey+ 23.57 75.90 22.30 76.09 100 E.Johnson 22.13 77.18 20.29 77.50 101 Open 37.82 61.59 35.63 62.19 103 Anchia 31.44 67.47 28.78 68.04 104 Alonzo 30.25 68.76 25.88 71.39 109 Giddings 19.84 79.62 18.78 79.79 110 M-Caraway+ 12.02 87.55 10.55 88.19 111 Y.Davis 24.18 75.24 22.81 75.60 116 M-Fischer 38.80 59.89 36.27 59.67 117 Garza* 47.71 51.33 44.69 51.76 118 Farias 42.57 56.36 37.44 58.81 119 Gutierrez 40.30 58.59 35.77 60.38 120 McClendon 36.12 62.95 34.14 62.49 123 Villarreal 39.13 59.58 36.30 59.35 124 Menendez 39.17 59.79 36.40 60.05 125 Castro+ 40.69 58.14 37.58 58.56 131 Allen 17.92 81.66 16.59 81.92 136 Vo 34.89 64.47 32.15 65.73 137 Open 43.64 55.47 42.22 55.26 139 Turner 23.99 75.55 22.65 75.85 140 Walle 33.16 66.24 27.42 71.02 141 Thompson 14.35 85.29 13.25 85.61 142 Dutton 21.32 78.28 19.31 79.43 143 Luna 35.22 64.14 27.89 70.22 144 Legler* 51.04 47.95 43.02 54.53 145 Alvarado 41.99 57.13 35.76 61.73 146 Miles 21.32 78.15 20.74 77.63 147 Coleman 18.94 80.34 18.16 79.68 148 Farrar 41.43 57.49 37.68 59.18 12 Open 59.77 39.38 50.77 46.67 17 K'schmidt 58.23 40.31 49.95 45.43 52 L.Gonzales* 51.93 46.18 50.33 45.01 85 Open 58.68 40.68 52.81 45.22 102 Carter* 52.18 46.64 50.17 46.75 105 H-Brown* 52.69 46.14 48.72 48.18 107 Sheets* 52.25 46.71 48.72 48.46 113 Driver*+ 53.00 46.05 49.53 47.87 114 Hartnett*+ 52.36 46.57 51.71 45.66 134 S.Davis* 54.39 44.59 56.95 40.36 149 Open 51.81 45.92 51.20 42.93

* = Republican incumbent
+ = Not running for re-election, at least as of last report

Here’s my analysis of the interim map, in which I didn’t specify a likely number of Dem seats but estimated it to be about 60, assuming nothing horrible happened, and here’s my series of posts analyzing the Lege-drawn map: non-urban 1; non-urban 2; Travis, Bexar, El Paso; Metroplex; and Harris County. In this map, Harris County remains with 24 seats, with Hubert Vo’s district being drawn as HD136, so the so-far four-way primary in HD137 remains on. Sarah Davis and Ken Legler get some help, though the latter remains an underdog as I see it. Jimmie Don Aycock in HD54 also gets some help, while Geanie Morrison and Aaron Pena likely stay retired. As Greg noted, the more compact HD26 is gone, replaced by the snowflake-like red-hued earlier version. By my count, this map probably delivers 55 to 60 Dem seats, about what the original interim map was likely to provide; the Lege-drawn map was probably good for 55 at most. Again, while this does represent an improvement, it’s still a long way back to parity for Dems, meaning that even in conceding all this ground, the Republicans would still come out well-placed, at least to begin with.

As for the State Senate map, there’s not much to say. SD10 remains a lean-R district, SD09 is slightly redder, and three other districts were tweaked as well. The main news here is the request by State Sen. Craig Estes, whose SD30 was one of those tweaked districts, to intervene. Sen. Wendy Davis, one of the plaintiffs in the lawsuits, did not sign on to the deal.

So looking at it strictly politically, Dems would do a little better than they were slated to do under the original legislatively-drawn maps, though not quite as well as they would have under the original court-drawn ones. These maps do fix some of the egregious problems and increase Latino opportunities a little, but potentially at the cost of Lloyd Doggett, and without addressing the question of coalition districts. That’s a big deal, and it’s likely the reason why the rest of the plaintiffs refused to sign off on Abbott’s proposal, and why the ultimate resolution of the litigation has the potential to produce maps more like the original interim ones, at least if the plaintiffs prevail. Michael Li, the man behind the great Texas Redistricting blog, wrote a sharp op-ed last week that laid the reasoning out. He focused on the claims for Davis’ SD10, for which the trial on her claims begins tomorrow, as the crux of the issue:

As urban Texas becomes more diverse — and compartmentalized neighborhoods that are the exclusive preserve of one ethnic group disappear — more and more districts like Davis’ will emerge naturally. The competitive state House seats that have arisen in recent years in places like Irving and Grand Prairie are a product of the same phenomena.

That may be why Texas Republicans have fought so hard to take apart Senate District 10 and shove its minority population into far-flung districts where forming winning coalitions is much harder if not impossible.

The crux of Texas Attorney General Greg Abbott’s court argument has been that the only districts protected under the Voting Rights Act are districts where, unlike Senate District 10, a single minority group, by itself, controls outcomes in elections. In other words, in his view, Hispanic and African-American voters only get protected by the Voting Rights Act if they live in neatly defined ethnic barrios of the type that are becoming more and more rare in a multi-ethnic Texas.

Abbott’s argument is a one-two power grab. On the one hand, the state argues it can’t draw more African-American or Hispanic seats because the populations are too spread out across the region. Then it argues that it can fracture the coalitions that minority groups manage to forge because “coalitions” aren’t protected by voting rights laws.

Accept his argument, and Texas would be free to do what it did to Senate District 10 when it put a strip of the district where the population is more than 78 percent African-American and Latino into an Anglo-dominated district stretching past Waco.

As Li notes, the DC panel rejected the state’s claims that coalition districts were not protected, though that doesn’t mean these particular coalition districts will get redress. This is why the majority of the plaintiffs were not interested in Abbott’s “deal”: It didn’t address their issues, and they have a reasonable hope that the DC court will. If that means the primary can’t be held in April, well, they weren’t the ones that asked for a stay from SCOTUS. Unless something happens to change this calculus, I think we’re back to waiting for the DC court to rule.

UPDATE: I should note that I’m only paying attention to the 2008 numbers in these maps because any interim maps are only going to be in effect for this year. We are certain to have a new set of maps for 2014, after all of the current litigation has concluded in the federal courts, and may well have yet another set for 2016 depending on when SCOTUS does its thing. As such, I consider looking at the 2010 numbers for these maps to be even more of an academic exercise than looking at the 2008 numbers is.

Redistricting settlement deal looking unlikely

Late last week we heard about the possibility of a settlement agreement in the San Antonio redistricting case that would allow for the creation of interim maps in time to keep the April 3 primary date. The court gave this Friday as a drop dead date for getting that done. As of today, it’s looking like that’s not going to happen.

Deal or no deal?

There were rumors floating around all weekend that there could be a deal struck as early as today, but with all parties heading to DC to catch closing arguments in the preclearance hearing tomorrow, Jan. 31, that seems unlikely. The Mexican American Legislative Caucus told the Chronicle this morning that a deal is not imminent, even though they are all working towards some kind of agreement.

MALC (and particularly chair Rep. Trez Martinez Fischer, D-San Antonio) and MALDEF are clearly most interested in creating the largest number possible of Hispanic opportunity districts. However, that could clash severely with both the interests of the other plaintiffs (many of whom are looking for more Democratic opportunity seats) and the historic coalition between African-American and Hispanic groups. Throughout this process, LULAC and the NAACP have been very much on the same page, and have not always been in complete agreement with MALC and MALDEF.

It would not be too surprising if MALDEF backed something closer to the legislature’s maps than the other plaintiffs would be comfortable with: After all, they were fine with a map that would split Travis County four ways and draw Congressman Lloyd Doggett into a Democratic primary with San Antonio’s Rep. Juan Castro.


The time crunch means the plaintiffs can dangle the equal representation terms of Section Two of the Voting Rights Act over the assembled heads of Attorney General Greg Abbott’s team. However, the DC District Court is expected to rule this week on whether the legislature’s maps violate the preclearance terms of Section Five of the VRA. There are undoubtedly voices in the room suggesting that the plaintiffs would be in a much stronger negotiating position – and that the state would have little legal wiggle room – if they just wait a couple more days.

Most importantly, as one source close to the negotiations put it, all the parties should be more concerned about ensuring true representation for all Texans that holding on to the arbitrary April 3 primary date.

ADDENDUM: Just got an email from LULAC attorney Luis Roberto Vera, Jr. who confirmed that his clients (who are still pushing for coalition districts) are still pushing to wait for the DC ruling, and that was the stated position of all plaintiffs to the San Antonio panel before this weekend. “As to negotiations,” he wrote, “they have totally broken down as of now. I am sure they will resume but I doubt an agreement if at all by this Monday so I don’t expect an April 3rd election.”

The Statesman reports that the AG has been trying to find a wedge in the plaintiffs’ unity.

Representatives for other plaintiff groups also didn’t want to speak publicly because of the delicate nature of the ongoing negotiations. But there has been some chatter among the groups that lawyers for the Mexican American Legislative Caucus and the Mexican American Legal Defense and Educational Fund, two of the main plaintiffs driving the litigation, have been talking to the state without other groups.

Though he didn’t name any groups in particular, Vera said some of the state’s lawyers were offering some plaintiffs’ lawyers deals that would benefit Latino groups but might be seen as detrimental to African American plaintiffs.

Vera said a major obstacle is that the state isn’t involving all parties in the negotiations. Gary Bledsoe, president of the Texas NAACP, which is among the plaintiffs, said the state was mainly negotiating with MALDEF and the Mexican American Legislative Caucus.

Bledsoe said unanimous agreement among the nine isn’t required for the court to accept a deal. He said he believes that there is a “reasonable chance” the state could work out a deal with two or three of the groups but that the odds of getting total consensus are longer.

State Rep. Trey Martinez Fischer, a San Antonio Democrat and chairman of the Mexican American Legislative Caucus, said his organization had been in touch with lawyers from Abbott’s office and gave them a strict set of parameters that would need to be met before they could agree to anything.

The Express News adds on.

Martinez Fischer said he thought the attorney general’s office was trying to work with as many plaintiffs groups as possible.

“Their intention is to try and work something out,” a stance he called “encouraging.”

But thus far, he said, MALC hasn’t been satisfied with what the state has offered. He declined to offer specifics.

Even if an agreement is reached, it could still be challenged.

An attorney for U.S. Rep. Joe Barton, R-Ennis, argued Friday before the three-judge panel in San Antonio that the attorney general’s office doesn’t have the authority to remake maps approved by the Legislature and that any maps that were redrawn would also need to be approved, or “precleared,” by the Justice Department.

Texas Attorney General Greg Abbott “would be agreeing to something that the Legislature did, so it would become new state policy,” attorney Trey Trainor said. “Well, the state doesn’t have the ability to implement change of voting policy without preclearance.”

Texas must get approval for new maps from the Justice Department under the Voting Rights Act because of the state’s history of discrimination.

Vera thinks that the plaintiffs should wait on the D.C. panel to rule rather than settle with Abbott’s office.

“There was so much evidence of racial discrimination,” he said. “Texas is going to get nailed, and nailed hard.”

If that really is the case, then there’s little incentive for the plaintiffs to settle. The primary date was more of an issue for Republicans, who want to have a say in their Presidential race and whose financial exposure for the state conventions is greater. And the previous talk about settlements, which sounded very favorable from a Democratic perspective, have apparently ruffled some feathers on that side of the aisle. Michael Li quotes from a post by RPT Chair Steve Munisteri, whose backside is clearly seeking some concealment:

It is important to note, that the talks between the Democratic and Republican parties deal solely with the deadlines and scheduling of the primary election, not with the boundaries of state legislative or Congressional districts. Only the Attorney General’s office’s attorneys are involved in those discussions. Thus, the email chains that have gone out accusing the Republican Party of Texas of trying to save a convention deposit in exchange for district lines, are blatantly false.

Emphasis mine. Translation: Don’t blame me if the pooch gets screwed.

Meanwhile, closing arguments were made in the DC preclearance trial, and from the sound of it the plaintiffs have good reason to be hopeful.

The three-judge panel frequently interrupted the state’s closing presentation on Tuesday, probed some of its most basic positions and questioned its interpretation of some evidence.

Lawyers for Texas argued throughout the trial that the GOP-controlled Legislature created oddly shaped districts and used gerrymandering techniques to protect Republican incumbents–not to discriminate against racial minorities. Political gerrymandering is legal, if not pretty, they said.

Judge Rosemary Collyer questioned whether politics could excuse the fracturing of minority communities, who fueled 89 percent of Texas’ population growth in the last decade and helped the state gain four new seats in Congress.

“It’s really hard to explain that,” she said, “other than on the basis of reducing the effectiveness of the minority vote, whether black or Latino.”

She pointed to the Legislature’s plans for congressional seats in the Dallas-Forth Worth area. District boundaries carve up much of the urban center–largely minority and Democratic–and disperses it into GOP-friendly districts in the suburbs.

Judge Beryl Howell said the state’s position treats minority populations as “collateral damage,” and Judge Thomas Griffith asked whether law required the Legislature to take the racial impact of its plans into consideration, even if the primary motive was political.

The state’s attorneys, who ended up spending much of their final statement answering questions, stuck to their position.

That doesn’t necessarily mean anything, but it’s often a sign of how the judges are thinking. If my reading is correct, that would be one reason why the state was interested in settling. By the same token, of course, that would be a disincentive for the plaintiffs to cut a deal. At this point, I’d say we’re waiting for the DC court to rule before anything else happens. We’ll know soon enough, though whether it’s soon enough to keep an April primary is question #1 and highly dependent on how soon we know. Campos has more.

Meet the voter ID three judge panel

The only voter ID anyone should need

The only voter ID anyone should need

As you know, the state of Texas has filed a lawsuit in the DC District Federal Court – the same court that is hearing the preclearance lawsuit – to get the odious voter ID law precleared. Michael Li introduces us to the judges that will be hearing this case.

Texas’ suit over its voter ID law has been assigned to a familiar face, Judge Rosemary Collyer, who is one of three judges hearing Texas’ suit over preclearance of its redistricting maps.

In addition to Judge Collyer, Chief Judge David Sentelle of the D.C. Circuit, on Friday, appointed Circuit Judge David Tatel and District Judge Robert Wilkins to sit on the panel. (Order here)

Judge Tatel is a Clinton appointee, and Judge Wilkins is an Obama appointee. As Juanita notes, that’s about as favorable a draw as Dems could want. Yes, I know, this is all a warmup act for SCOTUS, but it’s still critically important to get a good ruling. I’m hopeful this trial will go as well as the other one seems to have gone.

Texas files suit to preclear voter ID

They’re a mighty busy bunch at the OAG these days.

The only voter ID anyone should need

The only voter ID anyone should need

The Texas attorney general’s office today filed suit against U.S. Attorney General Eric Holder and the Department of Justice to have the state’s controversial voter ID law implemented without further delay.

The law, Senate Bill 14 by state Sen. Troy Fraser, R-Horseshoe Bay, was scheduled to take effect Jan. 1. It requires that voters show a picture ID before casting a ballot. It has been tied up at the Justice Department since July. Under Section 5 of the federal Voting Rights Act, the department reserves the right to review laws that affect voter participation before they are enacted.

“The U.S. Supreme Court has already ruled that voter identification laws are constitutional,” Texas Attorney General Greg Abbott said in a prepared statement. “Texas should be allowed the same authority other states have to protect the integrity of elections. To fast-track that authority, Texas is taking legal action in a D.C. court seeking approval of its voter identification law.”

Abbott’s office said that if the department grants the state’s request for preclearance, it would dismiss the suit.

You can see a copy of the complaint here. As Michael Li notes, the suit “does not challenge the constitutionality of section 5 on a facial basis but does extensively argue that failing to preclear Texas’ voter ID law would raise constitutional concerns, including possible violations of the 10th amendment and the state’s right to equal sovereignty”. The right of any individual to cast a vote is apparently not the State of Texas’ concern.

Rick Hasen delves more deeply into what the state is seeking.

In a recent Slate piece, I explained how South Carolina might file suit—and expedite it to the Supreme Court—arguing that section 5 of the VRA is no longer constitutional because it intrudes on state sovereignty.  (In 2009 the Court strongly hinted that a majority of the Court would take that position unless Congress changed the act, or demonstrated that covered jurisdictions present a greater danger of intentional race discrimination than other states to justify the strong preclearance requirement.  Congress did not act, but needs to.)  As some evidence South Carolina is considering going down that road, they’ve hired Supreme Court ace lawyer Paul Clement.

Today’s filing by Texas takes a slightly different tack.  It offers two ways for courts to preclear the voter identification law without striking down section 5 of the Voting Rights Act.  First, as TPM explains, Texas argues that the VRA’s established “nonretrogression standard” (i.e., are minorities worse off) should not apply outside the context of redistricting.  Second, Texas argues, in multiple ways and across numerous pages, that the Court can avoid the “grave constitutional doubts” raised if section 5 is read to bar Texas’s voter id law by reading section 5 in some narrow way so as to avoid the constitutional problem.   The 2009 case, NAMUDNO, was a very questionable application of the “constitutional avoidance” doctrine, and this looks like an attempt for a repeat performance.

The question is whether the conservative majority on the Court wants to kill the Voting Rights Act outright, or let it die the death of 1,000 cuts.  South Carolina may offer the Court the former, and Texas the latter.

You have to wonder how history will judge some of the things we do this year, and the people who do them.

Anyway. As we know, the Justice Department has been asking the state for data about how this law will affect minority voters, and it’s only in the last couple of weeks that the state has sort of fulfilled those requests. The DOJ refused to preclear a new voter ID law in South Carolina on the grounds that it was discriminatory, with AG Abbott expressing at that time the opinion that Texas’ law was headed for a similar fate. We’ll see what the DC court makes of this. For what it’s worth, they so far have not shown any inclination in the redistricting preclearance lawsuit to be more lenient on the state than Justice would have been. Postcards has more, Texas Redistricting has a response to Abbott from MALC Chair Trey Martinez-Fischer, and a statement from Sen. Rodney Ellis is here.

Trying to save the April 3 primary date

The race is on to get new maps in hand in time to keep the April 3 primary date, since all the options for after that date are distinctly unpalatable in one way or another. On Friday, the State of Texas asked the San Antonio court to get its work done by January 30. The court asked for responses to that request; the plaintiffs said it wasn’t realistic while the state said they’d work late and by phone to make it happen. They also suggested moving the second filing deadline to February 6 and shortening the period for mailing military ballots to 25 days. The court responded with some requests of its own.

Lines, lines, everywhere are lines...

Federal redistricting judges in San Antonio want to see if they can get agreement from the parties on political maps in time for an April 3 primary and said they are “giving serious consideration” to split primaries if no agreement can be reached by the first week of February.

The three federal judges said in an order issued this afternoon that they will meet with the parties on Friday instead of waiting until Feb. 1.

The five-page order is full of dates and deadlines:

  • The judges say they will almost certainly move a candidate filing deadline now set for Feb. 1.
  • They said the parties should confer and submit agreed-upon interim maps for legislative and congressional elections by Feb. 6 if they “wish to maintain the current election schedule.” If they can’t agree, the judges want a list of districts in the Legislature’s maps that each party no longer objects to.
  • The parties are involved in hearings in Washington, D.C., where a separate panel of three federal judges is deciding whether the Legislature’s maps violate preclearance provisions of the federal Voting Rights Act. Ideally, the San Antonio judges would have that court’s ruling in hand before it approves redistricting maps. It’s asking the lawyers to give the Washington court a nudge: “With high respect for the importance of that proceeding and the prerogatives of that court, this Court hereby requests both sides in the San Antonio proceedings to request, on behalf of this Court, that the D.C. Court attempt to rule on the Section 5 issues in time for this court to incorporate those decisions into its ultimate decision on the redistricting plans for the 2012 elections for the Texas House of Representatives, the Texas Senate, and the U.S. Congress.”
  • The Texas judges say they are giving “serious consideration to whether a so-called ‘split primary’ will be required” for this year’s elections, and asked the lawyers to be ready to talk about it at the end of the week. They also want lawyers for the state to be ready to say whether the state would be prepared to reimburse counties and the political parties for the “substantial additional expense of a split primary.”
  • The judges asked for comments on the idea of a presidential primary on April 3 with most or all other elections held later. The earlier presidential primary would relieve the Republican and Democratic political parties, which hope to have the primary elections well before their state conventions in June. The Republican Party of Texas has suggested the split primary on several occasions; the Democratic Party, in filings this week, said it would prefer a unified primary if possible.

You can see the court’s order here. We’ll know more this Friday, but a split primary is definitely a possibility. If that happens, I dearly hope the court orders the state to pay for it, as that seems to me to be the only fair solution. It’s clear that the San Antonio court wants the DC court to rule on the preclearance lawsuit first rather than have to guess what it will find in violation of Section 5. If the San Antonio court is left to its own devices, the “not insubstantial” standard for deciding what to remediate may give them a fair amount of leeway, though again I’m sure they’d prefer to have a clear roadmap. It’s going to be an exciting week. PDiddie has more.

SCOTUS issues ruling on redistricting

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.

DC preclearance trial, Day One

E. Barrett Prettyman Federal Courthouse, DC

While we wait for the Supreme Court to give us some indication of what happens next with our elections – they did not issue an opinion this week – the preclearance trial at the DC federal court got underway.

State Rep. Todd Hunter, R-Corpus Christi, testified that hearings were held statewide to allow input from all groups and citizens to form a bipartisan basis to redraw political lines.

Under cross-examination, though, Hunter said he was unaware that new political lines in Corpus Christi that eliminated a Latino state House seat also lumped all of his possible competitors into a neighboring district.

His claim that no one had complained about the minority makeup of the new state House districts was refuted with a videotape of Luis Figueroa of the Mexican American Legal Defense and Educational Fund telling a legislative hearing that eliminating the Corpus Christi seat would be tantamount to a Voting Rights Act violation.

Jose Garza, a lawyer with the Mexican American Legislative Caucus who was questioning Hunter, also told the court that he testified to the same problem before a state House committee.

There were hearings around the state, but it was also the case that there were almost no public hearings in the Legislature. The Congressional map passed through in record time, once the Republicans bothered to produce it. Seemed like the plaintiffs scored some points in the opening round, but it’s early days and there’s a lot of testimony to come, along with some pre-filed written testimony. The state’s case was simply summarized during pre-trial hearings.

In a hearing before the D.C. court, David Schenk, the Texas deputy attorney general, said the state did not intend to discriminate when it drew new political lines.

Without the intent of discrimination, the maps, which do protect Republican minority officeholders, should be approved.

“Texas did the best that it could,” Schenk argued.

I didn’t mean to smash into your car. I totally did the best I could driving, even if I was going 90 on a wet road at night. Without the intent to have an accident, I should be let go without a citation. Yeah, that sounds about right to me. We’ll see what the plaintiffs make of that. As always, Texas Redistricting has more.

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.

D.C. panel issues decision defining preclearance standards

From Michael Li:

Late Thursday evening, the D.C. panel issued its long-awaited opinion defining the standards for preclearance under section 5 of the Voting Rights Act and further explaining why the court had earlier rejected the State of Texas’ request for summary judgment.

The opinion, authored by Judge Rosemary Collyer, was unanimous.

Initial reaction from many observers is that the decision is a pretty significant win for the Justice Department- though, as in past Texas redistricting cycles, the case is likely to end up in Supreme Court. The opinion, though, also hands the DOJ and redistricting plaintiffs a few losses.

With more briefing due January 3 in the interim map appeal before the Supreme Court, it’s likely the D.C. court’s opinion could make a cameo appearance in that case as well – especially since some of the things the state says the San Antonio court got wrong, the D.C. court says Texas got wrong.

Li highlights the key aspects of the ruling, which you can read here, so go read the whole thing; he has more at BOR as well. Even on the key area where the court disagreed with the DOJ and the redistricting plaintiffs, that not adding any Hispanic opportunity districts among the four new Congressional seats was not necessarily retrogression because it reduced the proportion of Hispanic representation, they still concluded that it might be evidence of discriminatory intent on the state’s part. Here’s the Quorum Report, via email from Allen Jamail:

The Court said, “Although Texas’ alleged failure to account for the significant increase of the Hispanic population in the State does not establish retrogression, it is relevant to the Court’s evaluation of whether the Congressional Plan was enacted with discriminatory purpose.

A redistricting plan that does not increase a minority group’s voting power, despite a significant growth in that minority group’s population, may provide significant circumstantial evidence that the plan was enacted with the purpose of denying or abridging that community’s right to vote.

The Court also wrote:

“Summary judgment is also not appropriate because Texas has failed to demonstrate that the Plans do not have the purpose of “denying or abridging the right to vote on account of race or color, or [membership in a language minority group].” . . . We conclude that there are genuine issues of material fact regarding whether the Plans were enacted with discriminatory intent.

The net effect appears to be that the burden on the State of Texas to illustrate that the Texas legislative maps were not intentionally discriminatory designed to deny a political voice to a protected group has just been elevated.

We are still reviewing the decision. And it is true, the full litigation in DC in late January could provide a different outcome, but first blush analysis that the burden on the State of Texas substantially increased and that the legislatively drawn maps are in jeopardy.

The unanimous DC ruling also suggests that the Interim maps by the three judge panel in San Antonio could have legal legs.

My impression of this is that if the state, on the urging of AG Greg Abbott, thought they were going to get a better deal from the DC court than from the Justice Department, they have another think coming. More importantly, Rick Hasen believes this opinion may influence SCOTUS when it makes its ruling on the San Antonio court’s maps:

[T]he opinion provides strong reasons to think that Texas will not be able to obtain preclearance of its plans (though the issues will depend upon how the judges resolve contested facts at trial), and that fact could be relevant to the Supreme Court’s forthcoming hearing and decision on the interim plan. If the opinion convinces Justice Kennedy (and the Court liberals) that Texas’s proposed plans likely should not be precleared, then that is good reason these plans should not be deferred to by the courts in crafting an interim plan. Texas in its brief filed [Wednesday] conceded there should not be deference to a proposed (but unprecleared) plan when it is likely to believe the plan should not be precleared. The opinion today will be thrown back in Texas’s face in the second round of briefing before the Supreme Court.

I should hope so. Texas Politics has more.