The Supreme Court justices grappled to find a way to resolve a messy Texas redistricting case during oral arguments Monday morning, presenting then knocking down a variety of small-bore solutions to reach an interim map for Texas’s congressional and state-level elections.
The justices were clearly unhappy with their options, not wanting to put in place either Republican state legislators’ redistricting map or a state-drawn “bipartisan” map that drew in parts from the GOP map. They seemed to be looking for the solution that would have the least legal and political impact. But whatever they do could sway a few congressional seats to one party or the other in the next election — and affect how the Voting Rights Act is applied for decades to come.
Their decision could decide control of Congress: As many as four House districts could swing from one party to the other depending on what contours the final interim map has. The importance of the case could be seen in the audience: Top Democratic and Republican attorneys attended, as well as House members from both parties, including Texas Reps. Sheila Jackson Lee (D), Lloyd Doggett (D), Eddie Bernice Johnson (D) and Lamar Smith (R).
“How do you decide between two wrong choices?” asked Chief Justice John Roberts at one point.
At issue is an interim map drawn by a Texas court that could be used for this year’s elections, while the long federal process of approving or striking down the Republican-controlled Texas Legislature’s maps plays out. Under the Voting Rights Act, Texas has to get approval of any maps by either the Justice Department or the U.S. District Court for D.C., because of the state’s history of racial discrimination. The D.C. court has indicated that the Republican map is unlikely to be fully approved.
This is just one of many legal cases pending on the maps. The D.C. court is set to decide whether the maps violate the Voting Rights Act early next month, not early enough for Texas to be able to draw a new map without having to move back its primary. The U.S. District Court for the Western District of Texas will likely have to make some changes one way or the other on its own map — which it drew after rejecting the Legislature’s map — assuming the Supreme Court addresses its concerns to that San Antonio court and not the D.C. court.
Most of the justices indicated they thought both maps were unacceptable and could not be put into law without violating the Voting Rights Act. They might decide that the new map drawn by the Texas Legislature should be the benchmark from which to work, but that the state has to show in every instance that it is not discriminating against minorities. This approach seemed to be favored by Justice Anthony Kennedy, perceived as the swing vote on the highly polarized court.
This could lead to a new map that followed the basic contours of the state-drawn map but would be greatly altered where the courts found cases of discrimination. This would likely lead to a new temporary map that falls somewhere in between the two existing options and could force Texas for the second time to move its primary back. It is currently scheduled for April 3.
"The election may very well be postponed beyond April 3, but the most
important consideration is that these districts be drawn consistent with
the principles of the Voting Rights Act," Doggett said. "There was no indication in
this case that the Court was questioning the constitutionality of the
Voting Rights Act."
Justice Samuel Alito seemed to want to avoid dealing with the problem at all, repeatedly asking if it would be a problem to wait until the D.C. federal court made a ruling on whether the Legislature’s maps are legal or not. But his movement to punt on the matter didn’t seem to gain much traction with the other justices.
Some on the court have questioned in the past whether Texas and the other states covered by that section of the Voting Rights Act should have a higher burden than other parts of the country, and seemed poised to strike down that section in 2009 before finding a narrow ruling. But besides Justice Antonin Scalia, none seemed to want to take up that issue Monday — other cases that are intentionally aimed at that issue and much more robust are already working their way through the courts.