The Texas State Capitol in Austin. The Lone Star State is gaining four additional congressional seats because of its booming population, but its redistricting plans are in limbo.
The U.S. Supreme Court hears arguments Monday in a tangle of Texas redistricting cases, with repercussions beyond the Lone Star State. Consolidated into one test, the cases pit the Voting Rights Act and its protections for minority voters against state legislative powers — with an overlaying sheen of sheer political calculus.
The case has been called a puzzle of three courts, a reference to the interplay between two lower courts and the Supreme Court.
A Chance To Redraw
The Constitution mandates that, every 10 years, states must redraw their legislative and congressional district lines to reflect population shifts documented in the decennial census. Texas is one of the big beneficiaries this year. The state is gaining four additional congressional seats because of its booming population, fueled largely by Latinos. Of the 4 million new state residents, 65 percent are Hispanic.
Legislative redistricting is almost always an ugly process, stoked by partisanship and self-interest. But one thing that redistricting cannot do under the Voting Rights Act is dilute minority voting power.
That requirement extends to every state, but states like Texas — with a demonstrated history of racial and ethnic discrimination — must submit their redistricting plans in advance for pre-clearance to the U.S. Justice Department or to a three-judge federal district court in Washington, D.C.
This, however, is the first redistricting year since the Voting Rights Act was enacted in 1965 that the White House and Justice Department are run by Democrats. It is also the first time that Texas, now controlled by Republican office-holders, has entirely bypassed the quick, 60-day pre-clearance mechanism provided by the Justice Department.
District Court Demands The Facts
Instead of heading to the Justice Department, the state opted to seek pre-clearance from the federal court in Washington, D.C., a more open-ended procedure that was made longer when Texas rejected an early trial date and sought to win outright without a trial.
That didn't work out well for the state.
In November, the three-judge court, composed of both Republican and Democratic appointees, ruled unanimously that the state had failed to show that its plan was not discriminatory. The court then ordered a trial to determine the facts.
In the meantime, with the Texas primary elections just three months away and no redistricting map in place, the Washington court took an unusual step. It gave the green light to a different three-judge federal court in Texas to come up with an interim electoral map.
Texas Court Gives Interim Plan
The Texas court rejected the state plan, which would likely have resulted in three out of four new congressional seats going to the GOP. The court redrew the lines to more reflect Latino voting power, with the likely result being that three of the four new seats would go to Democrats.
The state then went to the U.S. Supreme Court seeking to block the interim plan. The high court blocked the plan and went further, agreeing to review the Texas court's interim plan even as the trial is set to begin before the pre-clearance court in Washington next week.
The legal dilemma facing the Supreme Court is this: It can't default to the old legislative map. Because of the huge population growth, that map violates the one-person, one-vote principle.
But the new map drawn by the GOP-controlled Texas Legislature has not been pre-cleared yet under the Voting Rights Act, and there are strong hints from the Washington, D.C., court that the state plan illegally minimizes minority voting power.
That leaves the interim plan, but the state of Texas contends that it, too, is invalid because the court in Texas "substituted its judgment" for the Legislature's without any finding of legal violations.
"Do you just have the courts start drawing from scratch?" asks former Bush administration Solicitor General Paul Clement, who is representing Texas. "Or ... we would suggest, you start with the legislative map and you only start redrawing it if you have a finding of a likely constitutional or statutory violation."
The state is asking the Supreme Court to void the interim plan and put in place the state's proposed redistricting plan for now, while pre-clearance is pending. The state notes that with primaries now scheduled for early April, candidates who need to know where to run and election administrators who need to print ballots are in dire need of a map for the 2012 election.
But minority groups, backed by the Obama administration, say the state's problems are of its own making because it has long known the timetable. Those defending the interim plan note that the state chose to bypass the quick Justice Department pre-clearance mechanism, and they maintain that the state has deliberately dragged out the pre-clearance process in court.
"Texas' claim that this process has bogged down and, therefore, it should somehow be excused [from complying with the Voting Rights Act] is a little bit reminiscent of the claim of somebody who kills his parents and then throws himself on the mercy of the court because he's an orphan," says Pam Karlan, a Stanford law professor who is one of the lawyers challenging the state plan.
Take It On Faith?
Indeed, Karlan notes that Texas has redrawn a district that the Supreme Court threw out just five years ago on grounds that it illegally minimized Latino voting power.
While Texas claims that the state Legislature's map is entitled to the presumption of good faith, those challenging the map contend that allowing Texas to use a plan that has not been pre-cleared would be an end run that effectively nullifies the minority voter protections in the Voting Rights Act.
As complicated as the case is, reading the legal tea leaves is even more difficult. By expediting consideration of the interim plan, the Supreme Court would seem to have signaled serious doubts about the plan devised by the federal court in Texas.
At the same time, the Washington, D.C., pre-clearance court has signaled even more overtly that the plan drawn up by the Texas Legislature would seem to be in clear violation of the law.
With both the interim plan and the Texas Legislature's plan under the legal microscope now at the same time in different courts, the three-court puzzle could turn out to be something of a Rubik's Cube.