In a case that could reshape political districts across the state, the U.S. Supreme Court this week will consider whether Texas for years has been conducting elections under maps that were drawn with the intent to discriminate against voters of color.
The high court on Tuesday will consider the state’s appeal of a lower court ruling that found Texas lawmakers diminished the voting strength of Hispanic and black voters when they drew the boundaries for congressional and state House districts. The complex and prolonged case — formally known as Abbott v. Perez — dates back to 2011, involves fights over three sets of political maps and includes findings of intentional discrimination and unconstitutional racial gerrymandering.
Here’s a breakdown of the voting rights issues in question and a preview of what to expect for Tuesday's oral arguments:
What’s at stake?
The case could upend elections in several areas of the state where districts may have to be redrawn to give voters of color more of a say. Because Hispanic and black voters are more likely to vote for Democrats, that could result in more seats held by Democrats.
In siding with civil rights groups, voters of color and Democratic lawmakers that challenged the maps over discrimination, a three-judge panel in San Antonio specifically flagged two congressional districts and nine state House districts, noting areas where the panel said lawmakers intentionally undercut the voting power of people of color “to ensure Anglo control” of districts.
Those districts, for the most part, were devised by the Republican-controlled Legislature in 2011 when lawmakers adjusted district boundaries to account for the state’s explosive growth, particularly among Hispanic residents, following the 2010 census.
But the 2011 maps never went into effect because, amid legal disputes over the boundaries, the San Antonio panel in 2012 ordered up temporary maps to be used for that year’s elections. When lawmakers returned to the Capitol in 2013 they adopted those temporary maps as permanent.
What does the state say?
Lawyers for Texas argue that lawmakers could not have discriminated against voters of color in 2013 because they simply "embraced" maps that the lower court had deemed were okay.
The San Antonio panel of judges at the time had warned that the interim maps — based largely on the state's original map-drawing — were meant to be temporary and that districts could still be subject to legal scrutiny. After lawmakers adopted those maps, the court ruled that lawmakers intentionally discriminated against voters of color in their 2011 maps and that the 2013 maps were tainted by that same discrimination in places where district boundaries were left unchanged.
But that finding, state attorneys argue, “defies law and logic” and “flunks the commonsense test to boot” because the lower court was supposed to avoid constitutional or voting rights violations when it approved the temporary maps.
“There is absolutely no support for the novel proposition that the same map can be constitutional when imposed by the court, but unconstitutional — let alone intentionally discriminatory — when embraced by the legislature,” they wrote in their brief to the court.
What do the map challengers argue?
In their pointed brief, those challenging the maps described the Legislature’s 2013 adoption of the temporary maps as “a ruse,” a “shellgame strategy” and a devious “smokescreen” meant to obscure lawmakers' discriminatory intentions behind the state’s original 2011 map.
They noted that Congressional District 27 and Congressional District 35 are “creatures” of the 2011 Legislature and — barring a few tweaks — the state House districts in question remain unchanged in the current maps, which have been in place for the past three election cycles.
The lower court “rightly saw through the 2013 masquerade” in ruling that the current maps continue to bear the mark of discrimination from the 2011 maps, they argue, and the Supreme Court should not free the state from any responsibility for a strategy the lower court described as "discriminatory at its heart."
The question of jurisdiction
But before the high court considers any of that, the justices will first have to determine whether they even have the authority to consider the case.
Those challenging the maps insist the state jumped the gun in appealing to the Supreme Court because the lower court did not issue a final injunction in the case preventing the state from using the current maps. Meanwhile, state attorneys contend they took the case to the high court because they would have been blocked from using the maps for the 2018 elections, even if the judges didn’t use the “magic word” of injunction.
In agreeing to take up the case, the court postponed consideration of jurisdiction until the hearing. Some of the lawyers representing challengers to the maps anticipate those questions could eat up a significant portion of the 70 minutes the justices have set aside for oral arguments.
What’s next after oral arguments?
The possible outcomes in the case are as convoluted as the tale of how we got here.
The Supreme Court could agree with the state in its appeal and allow the current maps to stand, handing a bruising loss to those who have spent years challenging the maps. It could also uphold the lower court ruling and set the stage for redrawing efforts either at the lower court or at the Capitol if the governor opts to call a special legislative session on redistricting. Because the case has taken so long to litigate, it’s possible revised maps would only be in place for one election before lawmakers begin redrawing political districts after the 2020 census.
A Supreme Court ruling against the state over intentional discrimination could also help determine whether Texas will be required to get federal approval every time it draws new districts — a condition meant to safeguard voters of color from discrimination.
There’s also the possibility the court will kick the case back to the lower court for lack of jurisdiction or so the San Antonio court can reconsider its findings. The court proceedings that would follow that decision would almost certainly set up a return trip to Washington before the case is eventually resolved.
Oral arguments are scheduled for April 24 with a decision from the high court expected to land some time in the summer.