Updated at 6:20 p.m.
The judges ended the day by telling the lawyers that if there isn't an agreement on the maps by Feb. 6, "there won't be an Apr. 3 election." They also set aside the deadlines that were in earlier orders, including a Feb. 1 date for filing candidate papers with political parties. They'll set a new deadline when they have maps. "It's our preference to try to get a map," Judge Orlando Garcia told the roomful of attorneys. "But we must deal with reality."
SAN ANTONIO — A panel of three federal judges stuck between the need for redistricting maps in a hurry and the need for maps that hold up in court told the parties to negotiate over the weekend and to bring in the results next week.
U.S. District Judge Orlando Garcia told an attorney for the state that the parties should try to agree "to as many districts as possible" by early next week "if you want to have an election in April."
He also said the parties should agree to an election date in case the maps can't be done in time for an April election.
Garcia and two other judges — Jerry Smith of the 5th U.S. Circuit Court of Appeals and U.S. District Judge Xavier Rodriguez — are trying to decide when to draw maps for the state's congressional and legislative elections, when to hold the state's primary elections, and whether the primaries should be split to allow Texans to take part in presidential elections early while giving the courts time to draw maps for the other elections, to be held later on.
And the panel is looking over its shoulder as it considers drawing its own maps now, wondering if it should wait for a Washington court's preclearance ruling on maps drawn last year by the Legislature.
In an ideal world — one without election deadlines looming — the San Antonio judges would wait for a preclearance ruling from the Washington judges before drawing a map. They'd incorporate that work with their own, draw maps and let the parties appeal to the Supreme Court if they wanted to.
This time, the process got jangled. The Washington court was slow. The San Antonio court, trying to put maps in place to meet the election schedule, jumped out of line. The U.S. Supreme Court agreed with the state that the San Antonio court should have used the maps drawn by the Legislature as the basis for their interim maps.
And now, the courts are back where they were in November. The state wants the San Antonio court to draw maps in a hurry; lawyers for the Texas Democratic Party and for the various groups that sued the state over the maps want the judges to wait for the Washington ruling before drawing maps.
Delaying the maps would further delay primaries that were already moved to April 3 from March 6. Several dates were informally suggested in court, including April 17, May 29 and June 6.
"We believe that a split primary would not be in the interest of the minority community or of the electorate in general," said Jose Garza, one of the lawyers for the Mexican American Legislative Caucus. He said separating the presidential race from the rest of the ballot would hurt turnout.
Assistant Attorney General David Mattax said the state wants to have a unified primary, and they want to have it in April. He said the state hasn't appropriated the money for extra elections. That's a new position. In hearings last month about moving the primaries, the state didn't take a position on whether the primaries should be split or not.
The judges are concerned about the timetable. Election administrators across the state have said they need 60 to 80 days after maps are completed to pull an election together. To hold an election on April 3, they've told the court that they need maps by the end of the month. "How are we supposed to get all of this done by the 1st?" asked an obviously frustrated Rodriguez.
"It can't be done," Garza answered. He reads the Supreme Court's recent decision to mean the worries of the state parties are "secondary" to the need to hold fair elections. The parties hold their state conventions in early June and must hold primaries in advance as part of their nominating process.
"Those are party issues," Garza said, in response to a question from Smith. "I'm not saying they're not important … but they must take a back seat."
"If the choice is between a unified primary and waiting to get the decision from this D.C. court, we're in favor of waiting for the D.C. court," said attorney Renea Hicks, representing the city of Austin, Travis County and others. "It settles so much dust."
That said, he, like everyone else on the plaintiff's side, argued for a unified primary. But he said waiting for the Washington court's ruling on preclearance would save the San Antonio judges from guessing at what their counterparts are going to do.
Smith asked what would happen if the Washington judges made their ruling before the San Antonio court acted. Mattax, the lawyer for the state, said the Supreme Court didn't tell the Texas judges to wait. "I think on an interim basis, for an interim map, the Supreme Court has told you the standard," he said. "This is not a final map."
Smith called that "untenable" and said he didn't see how the Texas court would be able to ignore a ruling if it comes out before the panel is finished drawing.
Garcia said the lawyers should meet over the weekend to figure out what they can agree upon. "Monday or Tuesday, you tell us the districts you've agreed upon or you'll tell us the date you've agreed upon if it's not going to be April," he said.