The Texas panel, which includes U.S. District Judges Orlando Garcia and Xavier Rodriguez, and Jerry Smith of the 5th U.S. Circuit Court of Appeals still must decide 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, and election administrators time to set up those elections.
It appears certain that most of the primary elections, already moved to April 3 from March 6, will be delayed again. Several dates were informally suggested in court, including April 17, May 29 and June 26.
That prompted the judges to ask whether Texans would still have a voice in selecting presidential nominees if the elections were pushed back. That's one of two possible rationales for a split primary; the other is that the political parties need to hold precinct elections and conventions in advance of their state conventions in early June.
One way to solve both problems is to hold presidential and party elections in early April and everything else from U.S. Senate down to county elections on a later date. And since presidential and party elections don't require runoffs, that split would only create one new primary election instead of a primary and a runoff.
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Even so, it would be expensive and, according to some of the lawyers, would suppress voter participation.
"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 wants to have it in April. He said the state hasn't appropriated the money for extra elections. That's new: 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 put together a May 29 election, for example, they'd need to have maps in hand by mid-March.
Since there are no maps today, April 3 appears to be logistically impossible. "It can't be done," Garza said. He takes the Supreme Court's recent decision to mean the worries of the state parties are "secondary" to the need to hold fair elections. "Those are party issues," Garza said, in response to a question from Smith about the state conventions. "I'm not saying they're not important … but they must take a back seat."
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