Friday, January 20, 2012

Supreme Court Rules on Texas Redistricting

The U. S. Supreme Court overturned the San Antonio court redistricting map this morning, opined that the court must give much greater deference to the legislative map, and remanded the case for further proceedings in the San Antonio court.  The ruling was per curiam, meaning that it was unsigned.  There were no dissents to the ruling, and there was a concurring opinion from Justice Thomas stating that Section 5 of the Voting Rights Act (VRA) was unconstitutional.
The San Antonio court has previously ordered a filing deadline of February 1 and a primary election date of April 3.  I believe one of two scenarios will now occur.  Scenario 1:  The San Antonio court will produce new interim maps next week consistent with the Supreme Court ruling, allowing the April 3 primary election to occur.  To produce maps this quickly, the court will rely heavily on the legislative plan and only make changes where it is certain to the court that there is a constitutional or VRA violation.  Scenario 2:  The San Antonio court will not produce a map next week but rather will wait on the D.C. court to issue a ruling in the VRA Section 5 proceeding.  This ruling will not occur until February at the earliest -- necessitating the Texas elections to be postponed further, probably until at least May.
The Supreme Court continues to act with exceptional speed in the Texas proceeding.  By issuing the opinion today (Monday would have been the normal day to release the ruling), it clearly is giving the San Antonio court the opportunity to rule in time for an April 3 election date.  If the court fails to do so, responsibility for further postponing the election will be borne by the San Antonio court and not the Supreme Court.  
The Supreme Court also has made it clear that the San Antonio court must follow the legislative plan unless it finds a likelihood of a Section 2 violation or a “reasonable probability” of a Section 5 violation.  The plaintiffs suing to set aside the legislative plan have the burden of proof, which is significant.
It is obvious the Supreme Court is putting pressure on the San Antonio court to issue a plan that is very close to the legislative plan, only changing as necessary any districts that likely violate the VRA.  Whether the San Antonio court will move quickly at this point is anyone’s guess.  The ball is firmly in their court.
In closing, I will note that I received pushback when I wrote the following after attending the Supreme Court January 9 hearing:
I was right.