The Supreme Court grappled Tuesday with whether it should take on a Texas redistricting case.
The state of Texas and the Department of Justice want the Supreme Court to accept their appeal of a San Antonio U.S. District Court’s ruling that the Texas Legislature discriminated against black and Latino voters in drawing certain congressional and local legislative districts.
Arguments Tuesday were focused mostly on whether the Supreme Court has jurisdiction to take the case.
Because the attorney general appealed the San Antonio court’s decision directly to the Supreme Court instead of responding to its order, plaintiffs representing Latino voters argue the state skipped a step and thus the top court has no jurisdiction.
The court’s liberal justices and conservative Samuel Alito focused many of their questions and comments on the issue of jurisdiction.
Chief Justice John Roberts and Justice Anthony Kennedy prodded counsel on both sides to discuss the merits of the case, particularly whether the Texas Legislature knowingly discriminated against Hispanic voters by permanently enacting the temporary court-ordered plan in 2013.
The case started 2011, when the Texas Legislature, controlled by Republicans, first redrew maps in an effort to help the party.
Those district lines were ruled as having discriminated against Hispanic voters and were prevented from going into effect. A temporary court-ordered map was used instead in the 2012 elections. That map was permanently enacted by the legislature in 2013.
The plaintiffs argued, successfully in district court, that the temporary map was adopted permanently without further study and defended by the state in subsequent elections. The 2013 plans, said the lower court, were adopted by the legislature to shield the maps from further litigation rather than to create a nondiscriminatory district map.
At issue are the congressional district maps for the 35th District, now held by Rep. Lloyd DoggettLloyd Alton DoggettLIVE COVERAGE: Tax hikes take center stage in Ways and Means markup American workers need us to get this pandemic under control around the world Biden attempts to turn page on Afghanistan with domestic refocus MORE (D), and the 27th District, formerly held by Rep. Blake FarentholdRandolph (Blake) Blake FarentholdThe biggest political upsets of the decade Members spar over sexual harassment training deadline Female Dems see double standard in Klobuchar accusations MORE (R), and nine Texas House legislative districts.
A key part of the case is whether legislators intended to discriminate when they moved forward with the lines set up by the San Antonio court.
The plaintiffs, in arguing that the legislature intended for the map to discriminate, said that the same legislators who enacted the 2011 plan that was found discriminatory were the ones who adopted the 2013 map.
State Rep. Rafael Anchia (D), pointed to Farenthold's former seat, where a Latino-majority population has been unable to elect a Hispanic candidate since 2010, in arguing the lines discriminate against Hispanics.
“His seat was designed to protect him and to take Latino voters and to reduce their ability to elect someone of their choice,” said Anchia, chairman of the bipartisan Mexican American Legislative Caucus, one of the plaintiffs in the case.
That argument seemed to resonate with liberal Justice Elena Kagan, who noted the similarity to the two maps created in 2011 and 2013.
“Suppose there's one map and then there's a second map, and the one map is later found to have all kinds of evidence of discriminatory intent surrounding it. There are e-mails. There's everything,” she said. “The second map, nothing. But the second map is exactly the same. What should a court do with respect to the second map?”
Texas Solicitor General Scott Keller argued that the legislature did not seek to discriminate in putting the legislative lines in place, and that a high bar must be met by the court to find that it had.
“You would need very persuasive evidence to overcome the strong presumption of good faith,” said Keller.
While questioning Max Renea Hicks, an attorney for the plaintiffs, Roberts said Keller's point “seems a strong argument.”
Much of the session was dedicated to discussing whether the court has jurisdiction over the matter, a subject that was whittled down to the question of whether the district court issued a final order to the state.
Justices seemed to all agree that Texas could only appeal if the lower court issued a final injunction, regardless of whether it was called an injunction. But justices will have to decide whether the lower court’s order qualifies as an injunction.
The San Antonio court issued its last order in the case in August, saying it would hold hearings “to consider remedial plans” if the legislature didn't enact new maps.
Justice Stephen Breyer sided with the plaintiffs in saying that court order did not constitute an injunction. He pressed Keller to show that the district court order was an injunction.
“What does the piece of paper say here? It seems to me the piece of paper says come to court. Now, if we're going to call that a grant or an injunction, we're going to hear 50,000 appeals from the 93 — however many three-judge courts there are,” said Breyer.
Updated at 4:28 p.m.