Redistricting, Redone by Lawmakers, Goes Back to Judges

SAN ANTONIO — The state’s redistricting litigation entered a new phase Monday, with lawyers and three federal judges figuring out what to do now that the U.S. Supreme Court has ruled a key law unconstitutional and the Texas Legislature has approved new maps.

A panel of federal judges denied the state’s request to dismiss the case, though they left open the possibility that they could do that later. And they asked lawyers to file briefs on what should happen next.

Attorneys for parties objecting to the maps want the judges to consider evidence that lawmakers intentionally discriminated when drawing maps in 2011. That finding could be used to subject the state to federal preclearance of any new maps — such as the ones passed by the Legislature and signed last week by Gov. Rick Perry.

The state asked the court to drop the case, because lawmakers passed new maps and because the U.S. Supreme Court released Texas and other jurisdictions from a requirement to get federal preclearance on any changes in their election law.

The plaintiffs hope to “bail-in” the state through another provision that requires preclearance for states that have recently exhibited intentional discrimination in their voting laws. They say Texas did so in 2011 and should require oversight as a result.

The state argues that the findings of intentional discrimination came in a ruling that has been vacated and doesn’t apply.

Both sides were told to write up their arguments by mid-July.

The court also asked the lawyers to say whether the current redistricting litigation should continue, or whether the panel should disband and let any new cases go to a new court. That will also be the subject of legal briefs due later in the month.

Two issues lie in this legal thicket: When will the state’s 2014 primaries be held, and using what maps? The court hasn’t addressed that question yet.

The litigation involves maps for congressional and legislative districts in Texas. All sides have agreed on maps for the Texas Senate, but there are still disagreements over the Texas House and congressional plans.

In 2011, the Legislature passed redistricting maps for the 2012 elections. The state was sued by a number of plaintiffs, and those maps were still being litigated when the 2012 elections came around. Federal judges in San Antonio drew interim maps for use in those elections.

After the elections, a second panel of federal judges in Washington, D.C. — working on preclearance of the Texas maps under the federal Voting Rights Act — found evidence of intentional discrimination in the House and congressional maps drawn by lawmakers. The state appealed that ruling to the U.S. Supreme Court.

While that was pending, the Supreme Court ruled in an Alabama case that Texas is no longer subject to preclearance coverage. The high court then vacated the pending Texas case in Washington.

At about the same time, the Texas Legislature was voting to ratify the interim maps that had been used in the 2012 elections — an attempt to abandon the 2011 maps it approved two years earlier.  

And now the case is back in front of the San Antonio judges, who are trying to decide what happens next. They didn’t set another hearing date, but they set a number of deadlines for legal briefs starting at mid-month.