Monday, December 12, 2011

SCOTUS Stays Interim Texas Maps

The U. S. Supreme Court issued an order Friday evening granting the State of Texas’ application for a stay of the interim maps drawn by the three judge panel in San Antonio (“San Antonio court”).  The Supreme Court set an expedited briefing schedule and docketed the case for oral argument on January 9. 
The San Antonio court issued an order Sunday afternoon scheduling a status conference for Tuesday at 10 a.m. to address the “filing deadline and all other administrative deadlines and other necessary considerations as they relate to the conducting of the 2012 Primary Election.”
Texas Attorney General Greg Abbott intends to ask the San Antonio court to stay all filing and administrative deadlines relating to the primary election for Texas’ congressional delegation and state legislature until after the court has approved the maps.
What Does This Mean?
There are now no legally enforceable maps for congressional, state house and state senate districts in Texas.  The maps passed by the 83rd Texas Legislature have not been precleared under Section 5 of the Voting Rights Act (“VRA”), and thus may not be used.  The interim maps recently drawn by the San Antonio court have now been stayed.
It is therefore highly unlikely that Texas will be able to hold primaries on March 6 to select nominees for its 36 congressional seats, its 150 house seats and its 31 senate seats.  I anticipate that the San Antonio court will suspend the November 15 filing deadline and the March 6 primary election for these offices until after the Supreme Court rules.
Bifurcated Primary?
Unaffected so far are the March 6 Texas primary elections for President, U. S. Senate, Railroad Commissioner, Texas Supreme Court, Texas Court of Criminal Appeals, State Board of Education, and county offices.  The State of Texas has discussed continuing with the statewide and county primary elections on March 6, and holding the congressional, house and senate primary elections on May 22, which is the runoff election date for the statewide and county offices.  Runoffs for congressional, house and senate seats would then be late July or early August.
The question before the San Antonio court this week will be does Texas have a bifurcated primary in 2012 by selecting nominees for the statewide and county offices on March 6, and selecting nominees for congressional, state house and state senate districts possibly on May 22 after the Supreme Court rules?  Alternatively, the entire March 6 primary could be delayed until after the Supreme Court rules.
What’s At Stake Nationally
The Supreme Court’s action and Texas’ redistricting is drawing considerable national attention, with some saying that control of the U. S. House of Representatives could hinge on the outcome.  The Democrats need to pick up 25 congressional seats in the 2012 election to have a majority in the U. S. House.  The Texas congressional delegation is currently 23 Republicans and 9 Democrats.  Texas received 4 additional seats under reapportionment.
The Legislature’s map preserved the 23 R seats, split the new seats 3R and 1D, resulting in a projected 2013 delegation of 26R and 10 D -- a pickup of 2 seats for the Republicans.  The San Antonio court’s map imperiled the seat of Congressman Canseco, split the new seats 3D and 1R, resulting in a possible 2013 delegation of 23R and 13D -- a pickup of 4 seats for the Democrats.
This 6 seat swing (+2R to +4D) between the Legislature’s map and the San Antonio court’s map clearly could swing the balance of power in the U. S. House.
Reading the Tea Leaves
A majority of the Supreme Court was required to issue the stay of the San Antonio court’s interim maps.  The Supreme Court clearly recognizes the chaos this will cause with Texas’ scheduled March 6 primary, almost certainly resulting in a delay of some or all of the primary.  I believe it highly unlikely that the Supreme Court will simply affirm the interim maps after its January 9 oral arguments.  At this point, it appears that a majority of the Supreme Court intends to invalidate some or all of the San Antonio court’s interim maps.
The Supreme Court may also examine whether Section 5 of the VRA remains constitutional.  The State of Texas has hinted at possibly bringing a constitutional challenge to Section 5 on the grounds that it usurps Texas’ sovereignty over its election system.  Many observers believe that a majority of the Supreme Court has been waiting for a case to declare Section 5 of the VRA unconstitutional, and this may be it.