WASHINGTON — The stakes in the fight over Texas’ political maps couldn’t be much higher.
While 11 political districts are on the line, the U.S. Supreme Court could weigh in on how much say voters of color have in electing who represents them. And the possibility that the state’s election laws could be placed back under federal oversight has been raised.
But as the high court’s justices took up the case Tuesday, they spent much of their time questioning whether they even had the authority to pick up where a lower court left off. That court ruled that Texas lawmakers intentionally discriminated against Hispanic and black voters when they drew boundaries for congressional and state House districts.
Standing before the nine justices in a packed courtroom, Texas Solicitor General Scott Keller was barely minutes into arguing that there was no evidence mapmakers acted with a discriminatory purpose when the court’s liberal justices interrupted and asked why the court should consider the case when the state hadn’t been prevented from using its current maps for the upcoming elections.
“What does the piece of paper say here?” a visibly annoyed Justice Stephen Breyer said, pointing to an August order by a three-judge federal panel in San Antonio that found the state acted nefariously in adopting maps that undercut the voting strength of Hispanics. The court indicated that several districts needed to be redrawn but didn’t explicitly say the state couldn't use the maps for the upcoming elections.
"It seems to me the piece of paper says 'come to court,'" Breyer added. "Now, if we're going to call that grant of an injunction, we're going to hear 50,000 appeals."
The state’s chief defense fell on the practical effect the lower court’s order would have on blocking the use of the maps for the 2018 elections. Had the state pushed to use them, it surely would have been held in contempt even though the lower court didn’t use “magic words,” like injunction, to block them, Keller insisted.
“I didn’t say ‘magic words,’” Breyer responded aggressively before challenging Keller to read the lower court’s order to him.
Breyer was joined by other liberal justices who were largely skeptical that the court was yet in a position to decide the complex case that dates back to 2011.
"By not waiting for the remedy in this case, we are not in a position to be fully informed on that question," said Justice Sonia Sotomayor.
At the heart of the case — which the high court is expected to rule on this summer — is whether Texas lawmakers intentionally diminished the voting power of Hispanic and black voters to keep white incumbents in office. The 11 districts in question in the case include two congressional districts and nine state House districts. In siding with the civil rights groups, voters of color and Democratic lawmakers that challenged the maps, the lower court’s ruling included findings of intentional discrimination and unconstitutional racial gerrymandering.
After making huge gains during the 2010 midterm election, Republicans were looking to solidify their control of the state — and even expand their majorities in Congress and in the state Legislature. But they had to grapple with how to redraw the political maps to account for the state’s growth when demographics were shifting against them. Most of the state’s explosive growth between 2000 and 2010 was attributable to growth of the state’s population of people of color, who are more likely to vote for Democrats.
The maps lawmakers first adopted in 2011 to account for that growth never went into effect. Amid legal wrangling over the boundaries, the San Antonio panel in 2012 ordered up temporary maps — largely based on the 2011 maps — to be used for that year’s election. Lawmakers then adopted those maps as permanent when they returned to the Capitol in 2013.
The justices on Tuesday took turns trying to untangle the lower court’s ruling that found the original maps were drawn with the intent to discriminate against voters of color and that the intentional discrimination found in the original maps carried over into the 2013 maps in districts where the boundaries remain unchanged.
Chief Justice John Roberts and Justice Samuel Alito seemed willing to believe the state was well-intentioned when it adopted maps the lower court deemed okay for the 2012 election.
Though the lower court warned the 2012 maps were meant to be temporary, Alito suggested it was possible the lower court engaged in a "pretty thorough, thoughtful analysis of the legality" of the districts it approved at the time. And Roberts appeared hesitant to take the lower court's finding of intentional discrimination at face value because the state seemed to earn the "presumption of good faith" when it leaned on the map the lower court approved.
“If you’re the attorney general or the Legislature in Texas and you want to take your best shot at a plan that will be accepted by the district court, wouldn't you take the plan that the district court drafted?” Roberts questioned.
The Legislature should have taken it as a "starting point" instead of using it as a "mask" for past discrimination, argued Allison Riggs, senior voting rights attorney with the Southern Coalition for Social Justice, who is representing some of the map challengers.
“They wanted to end litigation by maintaining the discrimination against black and Latino voters, muffling their growing political voice in a state where black and Latino voters’ population is exploding,” Riggs told the court.
The state’s defense of the 2013 strategy rests on its claims that it was taking the lower court at its word and working to end the litigation when it adopted the map it approved — an initiative that should be praised, argued Deputy U.S. Solicitor General Edwin Kneedler, who represented the about-face by the federal government in the case. Under the Obama administration, federal attorneys argued the state’s original maps were discriminatory.
“The plaintiffs suggest that there’s something pernicious about ending litigation, but, to the contrary, the state Legislature’s acknowledging that there was prior discrimination, accepting what the district court did as a remedy…and enacting a new law, that’s something to be commended when a state Legislature proceeds in that manner,” Kneedler said.
“Are you ending the litigation or are you ending the possibility of a court stopping you from discriminating?” Sotomayor retorted.
Determining whether the state can be held liable for intentionally discriminating against voters of color is key to the challengers’ efforts to persuade the courts to place Texas back under federal supervision.
Because of the state’s racially fraught history, Texas for decades was on a list of states that needed the federal government’s permission, or “preclearance,” to change their election laws, a safeguard for voters of color. And federal courts scolded the Texas Legislature — whether led by Republicans or Democrats — for engaging in a pattern of racial discrimination in every redistricting cycle since 1970.
But the Supreme Court wiped clean the list in 2013, noting that conditions for voters of color had "dramatically improved."
The court left open the possibility that future, purposeful discrimination could mean a return to preclearance.
Noting that the state’s pattern of discriminating against voters of color continues to this day, Austin lawyer Renea Hicks — who is also representing the map challengers — made note of a quip by former Justice Antonin Scalia that defined insanity as doing the same thing over and over again and expecting different results.
The Texas Legislature is not insane, Hicks offered, but it has shown it knows how to take on redistricting in way that diminishes the rights of voters of color.
“So I would ask the court to look at it this way: If you’ve done it in 2011 and you know the outcome of it, discrimination is doing the same thing over and over again and expecting and achieving exactly the same results,” Hicks said. “And that’s what happened here.”