The U.S. Supreme Court heard arguments today about Texas redistricting and now must decide whether the state's primaries must be delayed to buy time for the courts to approve new maps.
It appears that the justices have to choose between waiting for the current round of lower court proceedings to play out, pushing back the primaries or choosing an interim map to use now, keeping the primaries on schedule.
The high court took the case in December, after a panel of three federal judges in San Antonio adopted an interim map of its own making for the 2012 primary elections.
The Texas Legislature approved maps last year, but those haven't received pre-clearance — required by the federal Voting Rights Act — from another panel of three federal judges in Washington, D.C.
Election deadlines were approaching with no legal political districts in place, and the San Antonio court decided to draw a new map to be used until a permanent map could be approved.
"The justices on the court seemed to agree, at a minimum, that the three-judge court [in San Antonio] was wrong in the procedure that they followed and the conclusion that they reached," Texas Attorney General Greg Abbott said after the hearing.
That's been his argument all along. The state went to the Supreme Court to block the interim court map, saying the Legislature's map — though not pre-cleared — ought to be used for the 2012 elections.
The Supreme Court granted the state's stay, barring election officials from using the San Antonio map.
Monday's hearing was the first step in deciding how things should proceed.
Abbott, whose office is defending the Legislature's maps, started off with praise for the "sterling job" done by Paul Clement, the attorney he hired to argue before the justices. Abbott, who was a judge before becoming attorney general, said the justices spent some time working out the complexities of the cases and the timetable, asking, for instance, about the consequences of issuing their own ruling before a lower court decides whether or not to pre-clear the maps drawn by Texas legislators.
After watching the arguments, he wouldn't venture a guess about the likelihood of an April 3 primary. "It's very hard to read it," Abbott said.
He wasn't alone in that analysis.
"It's hard to know what the final verdict will be," said state Rep. Marc Veasey, D-Fort Worth, one of the plaintiffs in one of the lawsuits over Texas redistricting. He declared for Congress after the San Antonio court's map put a new district in Tarrant County.
"They seem to really want to make sure that when the election is held, that it's not hastily done," Veasey said of the justices. "They asked several times how far they could push the election back."
Veasey, like others, said it was impossible to read what the court will do. "We're going to have an election, sooner or later," he said.
The state hasn't challenged the Voting Rights Act directly. But if the Supreme Court decides the Legislature's map should be used even though it doesn't have the required pre-clearance, it would weaken the federal government's control over political maps and procedures used in Texas and other states covered by the Voting Rights Act.
The primaries have already been delayed, from March 6 to April 3. Holding them any later would put the state's political parties in peril because their biennial conventions, set for June, would have to be held before the runoff elections. That could tangle up the selection of delegates for national conventions later in the summer.
But it was near the top of the questions from the justices on the court. "Texas has a very early primary," said Justice Samuel Alito. "Some states have them for congressional races in - in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"
The pre-clearance proceedings on the Legislature's plans are still under way; the three federal judges hearing that case will open hearings Jan. 17 on the Legislature's maps and plan to hear closing arguments Feb. 3.
If the Supreme Court decides the Texas elections should wait for a ruling from the Washington panel, the April 3 primaries will probably be delayed. When the primaries were moved to April 3, election officials from around the state told the courts they'd have to have maps and candidate lists by Feb. 1; if they don't, those election officials, already presed, will argue they don't have time to put the elections together.
The state wants to use the Legislature's maps even if means using those without pre-clearance. The U.S. solicitor general argued that that would undermine the Voting Rights Act, because those maps aren't legal until they've been pre-cleared. And the groups suing the state — a mix of Democrats, minority groups and civil rights organizations — argued that the only legal maps are the ones drawn by the federal judges in San Antonio, because the state's maps haven't been pre-cleared.
"I really think the court is struggling with letting the enacted [legislative] map go forward, given the Section 5 pre-clearance," said state Rep. Trey Martinez Fischer, D-San Antonio. He heads the Mexican American Legislative Caucus, whose lawyer, Jose Garza, argued for the plaintiffs. "There didn't seem to be any support for letting that map go forward."
The Supreme Court could move things along by picking a map for use in the primaries while letting the court fights on permanent maps proceed. Or it could let the Washington court finish its work and let the elections use whatever comes out of the current litigation. Or it could tell the San Antonio judges to go back to the drawing board, drawing a new map starting from the Legislature's work.
The primary dates could be in trouble, even if the Supreme Court is fast. County election officials across the state have complained about the tight timelines, and Martinez Fischer said that might not hinge on the high court. "An April 3 primary is going to be challenging even without the Supreme Court weighing in," he said.
The transcript of today's oral arguments is available on the Supreme Court's website.