The U.S. Supreme Court heard arguments about Texas redistricting Monday 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 they 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 state went to the Supreme Court to block that move, saying the Legislature's map — though not pre-cleared as required by the Voting Rights Act — 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 is the first step in deciding how things should proceed from here.
Attorney General Greg 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. As for the hearing, he and others said it wasn't always easy to interpret.
"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," Abbott said.
Where they'll take that is anyone's guess. 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.
"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 just 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 state Legislature's map should be used even though it doesn't have the preclearance required by that federal law, it would weaken the federal government's control over political maps and procedures used in Texas and other states covered by the VRA.
The primaries have already be delayed, from March 6 to April 3. Holding them any later would put the state's political parties in peril since their biennial conventions, set for June, would have to be held before the runoff elections. That tangles up the selection of delegates for national conventions later in the summer.
The pre-clearance proceedings on the Texas Legislature's plans are still underway; the three federal judges hearing that case will open hearings next week (January 17) on the Legislature's maps and plan to hear closing arguments on February 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 from March 6, 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 already pressed election officials will argue they don't have time to put the elections together.
The State of Texas 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, since 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, since the state's maps haven't been pre-cleared.
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 litigation that's under way. 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 transcript of the oral arguments is available on the Supreme Court's website.