Texas on Defensive in SCOTUS Redistricting Reply Brief

You can read the brief here (Texas Redistricting is posting all the reply briefs as they come in). I was struck in reading the Texas brief how much less persuasive it seemed than the earlier filings (the stay requests and opening brief), which I thought were quite strong.  Texas made a strategic decision to try to blow off the significance of the D.C. court opinion explaining the denial of summary judgment, and that seemed to me to be a mistake.  The problem is that the opening brief put a lot of weight on the the question whether Texas was likely to succeed on the merits in the underlyling preclearance dispute before the D.C. court, and the DC opinion which came later really seemed to undermine that argument.

Also noteworthy in this brief is that Texas alludes the the potential unconstitutionality of section 5, an issue not squarely presented in the case: “If any argument in this case is ‘extreme,’ NAACP Br. 24, or ‘absurd,’ Rodriguez Br. 28, it is Appellees’ argument (fully endorsed by the Texas court) that a district court has carte blanche to rewrite a duly enacted state law—and order elections to be conducted under that judicially drawn map—solely because the preclearance process is taking too long, without any finding that those alterations are necessary to remedy a likely violation of law and narrowly tailored to do so. If that is really what Section 5 requires, then the doubts about its constitutionality are even graver than this Court feared in Northwest Austin.”

Finally, in talking about who was responsible for the delay in the preclearance process, Texas describes the state of the current administrative preclearance request of its voter identification law: “Texas’ decision to seek administrative preclearance of its recently enacted voter identification law further illustrates this point. Texas sought administrative preclearance from DOJ on July 25, 2011, less than a week after filing its judicial preclearance action for its redistricting maps. On September 23, 2011, at the very end of the 60-day review period, DOJ requested additional information. Nearly two months after that, on November 16, 2011, DOJ asserted that the State’s submission was insufficient. Over 160 days have now elapsed since Texas submitted its Voter ID law for preclearance, and DOJ still has not made a final decision about whether it will interpose objections.”

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