If Texas is going to hold primary elections on April 3, the federal courts will have to pick up the pace.
A panel of federal judges in Washington, D.C., is deciding whether congressional and legislative district maps drawn by the Legislature last year give proper protection to minority voters under the federal Voting Rights Act. At the same time, the U.S. Supreme Court is deciding whether an interim map drawn by federal judges in San Antonio is legal.
In the meanwhile, there are no maps in place for the impending Texas elections.
A panel of federal judges in San Antonio has the job of deciding whether the maps legislators drew last year properly account for population growth and representation, and that court will also finally approve maps to be used for this year's elections. But since the D.C. judges moved slowly in deciding whether the maps follow the Voting Rights Act, and the election season was almost under way, the San Antonio judges drew interim maps to be used in the meantime.
Instead of starting with the Legislature's maps, the San Antonio court started with the maps currently in use. As a result, their maps weren't as strongly Republican as the ones that lawmakers drew.
The state objected and took its case to the U.S. Supreme Court, which put everything on ice and scheduled hearings for next week. The high court will let the lower courts know how to get legal maps in place for the elections, either by letting the court-drawn maps go into effect or by setting some other remedy in motion.
The Supreme Court will decide whether the San Antonio judges should have deferred to the state plan. One argument against the state plan is that it hadn't won preclearance from the Washington, D.C., panel and thus wasn't a "legal" map; the only map to go from, by that reasoning, was the one used in the 2010 elections. That's what the Texas judges used. The attorney general argues that the state plan hadn't been found illegal and that it was the latest product of a political body that is more accountable to the public than a trio of federal judges. So, the state argues that the San Antonio court should have used the legislators' map.
Several other states — Alabama, Florida, South Carolina, Arizona, Georgia, Michigan and Louisiana — filed friend-of-the-court briefs supporting the state's argument. "The common sense solution is to defer to the state's plan except to the extent it needs to be modified for violations of federal law," they wrote.
The Texas case probably doesn't have huge, overarching implications. There are a couple of serious challenges to the Voting Rights Act itself — a voter ID lawsuit from South Carolina, and redistricting cases from Alabama and North Carolina — but that's not a central issue in the Texas case. This is more a matter of which map ought to have precedence if the elections come up before the courts are finished vetting and correcting new maps drawn by the state.
Rick Hasen, a professor at the University of California at Irvine School of Law, says there are some allusions to a VRA challenge in the briefs in the Texas case, but nothing that directly challenges that law's Section 5 preclearance provisions.
That section prohibits changes in election law or procedures in states with histories of voter discrimination — including Texas — until those changes have been approved by the U.S. Department of Justice or the federal district courts in Washington, D.C.
The Supreme Court signaled its frustration with that provision in a 2009 Texas case, but other pending cases appear to be aimed at that. This year's case from Texas is more about interpreting the law than challenging it.
"I would be shocked if the court used this emergency stay expedited case as a vehicle to strike down Section 5 of the Voting Rights Act. However, I think the constitutional question lurks in the background," Hasen said.
The U.S. Supreme Court set oral arguments for next Monday, Jan. 9. The panel of federal judges in Washington, D.C., scheduled hearings for Jan. 17 through 26, with final arguments on Feb. 3.
That leaves the three federal judges in San Antonio to put together a final map based in part on its own rulings and in part on what the other courts decide after the hearings this month and next. That court set a deadline of Feb. 1 for candidates to file for legislative and congressional races, assuming they'd have a map by that time. And they moved the primaries to April 3 from March 6. That could easily move again, though. Even if the maps are ready by the end of this month, county election administrators in Texas told the courts that doesn't give them enough time. And if the high court tells the Texas court to wait for the Washington court, they'll be waiting for a decision after those Feb. 3 final arguments, making April 3 elections impossible.
The Texas case is really about who's in the drivers' seat when the maps are redone. Hasen puts it like this: "How much deference do you give to a legislative plan that has not been precleared, but where the state has sought preclearance?"
The Supremes could give the San Antonio court an answer on which map to use for this year's elections — the one drawn by the Legislature, the interim map drawn by the San Antonio court itself, or something else. And the Washington district court could give the Texas judges some guidance on which districts, if any, should be changed to protect existing minority voters' ability to elect their candidates of choice. The San Antonio court will still have to decide for itself whether the state's maps properly account for growth in minority populations that fueled 89 percent of the overall growth in state population during the last decade.
"The case still has to be tried on the merits no matter what happens in the Supreme Court," said Jose Garza, an attorney representing the Mexican American Legislative Caucus. He'll lead the arguments against the state in the U.S. Supreme Court next week.
Garza said he still thinks there is "a possibility" that the Texas primaries will be held on April 3. But it would require fast action from the courts. Texas counties went to court during the holidays to let the judges know that they would be hard-pressed to hold primaries in April if they don't have maps until the end of January. On the other side of that is an argument from the Democratic and Republican parties, which won't have time to pick delegates to the national political conventions if the primaries are any later than April.
It's possible — and it's happened before — that the state will use one set of maps for the 2012 elections and the courts will then approve a different set of maps for use in 2014 and later. And, as the state Legislature proved in 2003, they're fully capable of coming back into session in mid-decade and drawing new maps from scratch.