The bet here is that the U.S. Supreme Court wouldn't have taken the Texas redistricting case if they thought it was a good idea to hold elections using the San Antonio court's plan. If it was, why issue a stay, set arguments, and risk delaying the primaries?
So what's next? Do they give the state a pass to use the Legislature's maps even without the preclearance review required under the Voting Rights Act? Or do they tell the state to wait for pre-clearance and all that, delaying the primaries once again?
What the federal courts have done in the past, in one form or fashion, was to acknowledge the calendar — to let the elections proceed with "good enough" maps, knowing as they did so that the ultimate maps would be different. Even though they've made a mess of the political spring this year, that's not out of the question. Don't be at all surprised if the maps used for this year's elections are different from the maps used for congressional and legislative plans in 2014.
If it wants to move quickly, the court could put the Legislature's maps to use for the 2014 elections, though they haven't been precleared. Or it could use the maps drawn by the federal judges in San Antonio, though those judges didn't issue a finding that the Legislature's maps were inadequate.
Meanwhile, the federal district court panel in Washington, DC, will hold hearings January 17-26, with closing arguments on February 3, on whether the Legislature's maps should be pre-cleared for use under the terms of the Voting Rights Act.
This is a pretzel, a Rube Goldberg timeline in words:
1) The Legislature enacts maps;
2a) the attorney general goes to his choice of the Justice Department or the Washington courts for preclearance;
2b) various parties unhappy with the legislative results sue in federal court in Texas;
3) preclearance under Section 5 of the Voting Rights Act is granted or not, and the DOJ or the Washington courts sends that work to the federal panel in Texas;
4) the Texas panel holds hearings under Section 2 of the VRA, the U.S. Constitution, and whatever else has been raised in the lawsuits;
5) the Texas panel draws maps (anything from simple approval of what the Legislature did to major changes) that take their own findings and the Section 5 instructions from Washington into account and orders those maps into effect;
6) appeals, if any, take place; and
7) the elections are held.
Sometimes, the last two steps are flipped, and the courts remain busy as the elections proceed.
This time, steps 4 and 5 got in front of step 3 when the Texas court tried to get a map in place in time for the statutory election deadlines. The court didn't start with the Legislature's map — which was pending in court in Washington — and the state went to the Supremes — usually step 6 — to freeze the game and try to get the state map in place of the court's map.
For some, that's an argument for reconsidering the whole preclearance part of the federal law, and the current Supreme Court has already expressed some frustration with Section 5 in another Texas case two years ago. Most of the lawyers involved say this Texas case doesn't present a straight-up challenge to the Voting Rights Act, but several other cases in the pipeline — from North Carolina, from Alabama, and in a Voter ID case from South Carolina — could. In the Texas case, the main legal question is whether the federal courts or the state Legislature's map is superior.
There are two practical questions to be answered before the state's politics can get started again. What maps? When is the election?
The Supreme Court hears oral arguments on Monday.
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