I attended oral arguments this afternoon at the Supreme Court regarding the Texas redistricting maps. My initial observations are as follows:
1. There are clearly five votes to do something: This question is what? In my observations, Chief Justice Roberts and Justices Alito, Kennedy, Scalia, Thomas are likely to overturn the San Antonio court map. However, it is not clear how or when.
2. I believe that Section 5 of the Voting Rights Act (“VRA”) is definitely in play before the court. Chief Justice Roberts stated that the constitutionality of the VRA as a whole is not before the court, but clearly Section 5 is.
3. What appeared to trouble a majority of the court is that no deference is being given to the legislative maps, even though there has been no finding of violation by the legislative maps. There was much discussion regarding redistricting being about policy choices, and a majority of the court seemed uncomfortable with judges making policy choices as opposed to the legislature.
4. Chief Justice Roberts (I believe it was he) indicated that the court needed to have a plan in effect by February 1. Justice Alito questioned why Texas couldn’t simply push its elections back in order to give the courts more time to complete their proceedings. In response to a question from Justice Sotomayor, the answer was given that some states have legislative primaries as late as September.
5. My read of the oral argument is that the Supreme Court is likely to issue an opinion before the end of January. I believe that ruling will overturn the San Antonio court plan, and instruct that greater deference be given to the legislative plan.
6. However, it also appears likely to me that the DC court will not preclear the legislative plan. At one point when the discussion was about the DC court proceedings and when they were likely to conclude (Mr. Garza stated within 30 days), the Chief Justice then asked “And when do you expect that appeal to be back before us?”
After reading other blogs and articles about the hearing, I reserve the right to revise and extend my remarks.