Even if the U.S. Supreme Court decides not to intervene in the Texas redistricting controversy, the maps drawn by federal judges in San Antonio could be knocked down by another federal panel, Attorney General Greg Abbott told the Tribune Monday.
Within the last few days, a panel of three federal judges in San Antonio ordered the state to hold congressional and legislative elections under interim maps drawn by the court. The maps drawn by the Legislature haven't been pre-cleared under the federal Voting Rights Act and can't be used, and the maps used in past elections are out of date in view of new population numbers produced by the 2010 census. The San Antonio judges remedied that by drawing maps of their own. All three judges signed off on the court's Senate map; the congressional and House maps were approved by a 2-1 vote.
In an interview with the Tribune, Abbott said the court goofed, incorrectly replacing a legislative map that hasn't been ruled illegal. His office asked the Supreme Court to stay the San Antonio court's orders, even if it means holding some primary elections in May instead of March. That could mean a March primary on the presidential and other statewide races and on local races but legislative and congressional races delayed until May, after the courts have settled the disputes over maps.
The San Antonio maps could be replaced even if the Supreme Court denies the state's request, Abbott said. The state sought pre-clearance from a panel of three federal judges in Washington, which decided to hold a trial on that issue as early as next month. Abbott says a green light on the state maps could "largely nullify" the maps ordered by the San Antonio court, throwing yet another variable into the already volatile election calendar.
"When there has not been a rejection of the state plan, but there have been efforts by the state to get it pre-cleared, there has to be deference given to the state map created by the state Legislature," Abbott said. "The court refused to apply that standard here and instead created a map out of their own whole cloth, out of their own standard.
"The map that we have right now — the one the Legislature drew — has not been held by anyone, anywhere, anyhow, anytime [to be] illegal in any way," he said.
Democrats defended the court's maps, saying the Legislature ignored the law, and the courts had to intervene.
"Today, Attorney General Greg Abbott applied for an emergency stay of the maps from the United States Supreme Court, once again, putting the 2012 election cycle in jeopardy," said state Rep. Trey Martinez Fischer, D-San Antonio, who heads the Mexican American Legislative Caucus. "The leadership in the Legislature chose to ignore overwhelming Latino growth in our state and refused to adhere to the Voting Rights Act, now the courts have had to step in and apply the law. The leadership of Texas defaulted on their opportunity to enact fair and legal legislative maps. Instead, they sought to expand their political power on the backs of African-American, Latino and Asian-American Texans. To date, six federal judges have rejected Attorney General Abbott's fiction that Texas' redistricting maps comply with the law and should be implemented for Texas elections."
Abbott, accused by Democrats of slowing down the proceedings by asking the courts for pre-clearance instead of seeking it from the Obama administration's Department of Justice, said "foot dragging" by those lawyers has pushed the case into conflict with the candidate filings.
"Texas has been and continues to move aggressively for pre-clearance from the court. However, it has been and remains to be the DOJ that continues to drag its feet and slow things down," Abbott said.
He said the state has asked for a trial on Dec. 12 and the Justice Department lawyers asked the court to abate that hearing. The delays would have been as bad or worse had the state gone to DOJ for pre-clearance, he said: "In hindsight, the strategy that we did take was the best strategy that we could have taken."
Abbott hired Paul Clement, a noted Supreme Court advocate, to help his office with the case (at a rate of $520 an hour, which he called "a steep discount"). Clement worked with Abbott on a lawsuit over the display of the Ten Commandments on the grounds of the state Capitol.
Late this afternoon, U.S. Supreme Court Justice Antonin Scalia asked the lawyers in the case to file responses to Abbott's request by Thursday afternoon.