No matter what the Supreme Court does with the Texas redistricting case it heard Tuesday, Texas Republicans have already won, in a way, in how they have been able to drag out the litigation over their 2011 state legislative and U.S. congressional map.
The conservative faction of the Supreme Court — whose questioning was dominated by Chief Justice John Roberts and Justice Samuel Alito — signaled that it had no problem with the most recent round of delay tactics Texas employed to get the case back in front of the high court for a second time.
The case is called Abbott v. Perez, and it stems from multiple challenges to the legislative maps Texas drew after the 2010 Census. One question the Supreme Court examined was whether this was even the proper juncture for it to intervene. A three-judge district court in San Antonio has issued multiple rulings finding the maps discriminatory against Latino and African American voters, but had not yet completed the remedy stage when Texas successfully sought a stay in the case from Justice Samuel Alito.
The liberals on the court stressed that intervening now would open the doors for any case to seek Supreme Court review without a final ruling or a formal preliminary injunction.
Justice Sonia Sotomayor said, that under Texas’ theory, every time a district court judge declared a legislative district illegally drawn, it could be appealed to the Supreme Court, before the remedial stage.
Added Justice Elena Kagan: “And what I’m concerned about is that if you’re right, we’re going to be hearing all of these districting cases not after the remedial stage but, instead, straight away after the liability stage.”
Justice Stephen Breyer worried that the Supreme Court would have to hear tens of thousands of appeals, for every time a court requests a party’s appearance in front of it.
“Now, if we’re going to call that a grant of an injunction, we’re going to hear
50,000 appeals from the 93 — however many — three-judge courts there are,” Breyer said.
While the conservatives on the court engaged with this question a bit, they seemed eager to drill down on to the deeper questions in Texas’ request. Chief Justice John Roberts on multiple occasions asked the lawyers arguing in front of him to move on to the merits of the case.
Those arguments revolved around the district court’s findings of discriminatory intent in how Texas drew the maps. The conservative justices seemed skeptical that the Texas legislature, in adopting in 2013 an interim map the district court drew for the 2012 elections, could be found to have carried over the same discriminatory intent that court found it acted upon when drawing the original maps.
The irony of this turn of events is that in 2012 the Supreme Court unanimously threw out an interim map the district court in San Antonio had initially drawn, and asked that the district court more narrowly tailor the interim map for the 2012 election. When it did so, the district court emphasized that “this interim map is a result of preliminary determinations” and “is not a final ruling on the merits of any claims.”
That didn’t stop then-Gov. Rick Perry from calling an emergency legislative session to adopt the interim map. Even with the district court’s warning about the 2012 map, Roberts on Tuesday questioned why the state shouldn’t be able to trust a court to draw a map that isn’t discriminatory.
“If you’re the Attorney General or — or the — the legislature in Texas and you want to take your best shot at a plan that will be accepted by the district court, wouldn’t you take the plan that the district court drafted?” Roberts asked.
Alito, meanwhile, signaled a readiness to challenge even the 2011 findings of discriminatory intent.
In the background of that discussion is the threat that Texas could be put back under the so-called pre-clearance process, which under the Voting Rights Act would require it to seek the Justice Department’s or a federal court’s approval every time it changed its voting policies.
That question was not in front of the Supreme Court on Wednesday, but the challengers plan to use this case to ask the district court to put Texas back under pre-clearance under the VRA’s Section 3, which allows states and jurisdictions to be “bailed in” if they are found to have acted with intent to discriminate against minority voters. If the challengers are successful in bailing Texas in under preclearance, Texas is almost guaranteed to appeal the case to the Supreme Court. (Texas was previously under pre-clearance under the VRA’s Section 5, until the Supreme Court in 2013 gutted that provision of the law.)
How the the case got to the Supreme Court is extremely convoluted, even when compared to how convoluted redistricting cases typically are. Litigation over the maps Texas drew in 2011 has been ongoing for the better part of a decade, and both the San Antonio court and a Washington D.C. court — where Texas sought VRA pre-clearance — found in 2012 that the maps were drawn with a discriminatory intent.
In 2012, the court in San Antonio imposed an interim map for the 2012 election. The Supreme Court, at Texas’ request, constrained just how much of the map the district court could redraw. At the time, the district court warned that it was not done working through the claims against the 2011 maps. Texas’ Republican legislature, in turn, adopted the interim map statutorily in 2013. The litigation, however, continued, and the San Antonio court handed down decisions in 2017 finding that both the 2011 map and the 2013 map were illegal. It had planned to hold a hearing on remedial plans in September, until Texas sought the intervention of the Supreme Court, prompting Tuesday’s hearing.
At issue are two U.S. congressional and nine state legislative districts. Because it is likely too late to fix those maps in time for the 2018 elections, even if Texas loses this round, it will have had kept in place maps found to be intentionally discriminatory in eight out of 10 years of elections. After the 2020 elections, it will be required to draw new maps, regardless, based on the 2020 Census.
Breyer noted that usually, to get a Supreme Court review, a party needed a “piece of paper” with either a lower court’s final order or a preliminary injunction. Texas was, in effect, appealing the district court’s request that it show up in court with proposals to fix its maps.
“What does the piece of paper say here?” he asked Texas Solicitor General Scott Keller, who conceded that there was no “magic word” of preliminary injunction.
Edwin Kneedler, the U.S. deputy solicitor general arguing on the side of Texas, took issue with the district court giving Texas only three days to decide if it would call a special legislature to try to fix its maps. Justice Kagan asked if that would still be an issue if the court had given Texas three weeks.
When the challengers’ attorneys stepped up, the conservative justices zeroed in on whether the Texas legislature had been given the presumption of good faith in the district court’s finding that it still acted with a discriminatory intent when adopting the interim map. Austin attorney Max Renea Hicks argued on behalf the parties challenging the U.S. congressional districts, and Allison Riggs, of the voting rights group Southern Coalition for Social Justice, argued for those challenging the state legislative districts.
When Riggs said that the 2013 map was passed to “mask” the discriminatory intent that Texas had in drawing the 2011 version, Roberts asked who was doing the masking: the Texas legislature, or the district court that drew the interim model it was based on?
Hicks argued that in 2013 Texas knew, based on the 2012 elections, that the interim map had succeeded in what the 2011 map had intended. He invoked a quip once quoted by the late Justice Antonio Scalia, that the definition of insanity is doing the same thing over and over expecting different results.
“Texas is not insane,” Hicks said, in knowing the same thing — an undermining of minority votes — would happen with the 2011 map and the 2013 map.
Texas claims that, in adopting the interim map, it was merely seeking to end the litigation.
It doesn’t matter that Texas wanted to end the litigation, Riggs said. “It matters how they wanted to end the litigation.”
If the Supreme Court sides with Texas, that gambit may prove to have been successful.