I have now had a chance to read through the transcript of today’s argument in the Texas redistricting cases. Here are some observations (pardon me for some of the voting rights shorthand in this piece).
1. Everything below is with a big caveat that the case is very complex and the Justices had to digest everything on a fairly short timeframe, and so views are more likely to change after argument than normal.
2. The two most likely outcomes appear to be (a) follow Justice Kagan’s approach or (b) wait it out for the D.C. court. Justice Kagan’s approach would be a remand to the San Antonio court, with instructions for Texas to justify why its lines were likely to be precleared. Wherever Texas could make that showing, the court would defer to Texas map. Wherever Texas could not make that showing, the judges would not rely on Texas’s map (they might be told to rely on the old lines, taking into account section 2 and constitutional considerations. The alternative is to hope that the D.C. court could decide this case on the merits in time, thereby mooting the need for the interim map.
3. Both of these outcomes present challenges given the timing, especially if there are further appeals to the Supreme Court if either the San Antonio court draws new maps under the Justice Kagan approach or the D.C. court denies preclearance of some parts of the plan and an interim map must be drawn partially using Upham deference. On timing, the Justice Kagan approach is better, because there would be time for another appeal to the Supreme Court if necessary. Drawback of Justice Kagan plan: it requires going back to the same 3-judge court in San Antonio which the conservatives on the Court may well not trust to do a good/fair job, based upon comments at today’s argument. But Chief Justice Roberts seemed unsatisfied with Texas’s position and what the three-judge court did, and I could see him getting 8 or 9 justices to agree on a quick order following the Justice Kagan approach.
4. Justice Kennedy’s idea to “forget section 5” appeared to be the Justice thinking out loud. I don’t think the approach would have other supporters and it will present the same timing problems, if not more. I don’t expect this to go anywhere.
5. What’s not at stake in this case: the constitutionality of section 5 of the Voting Rights Act. Chief Justice Roberts put the kabosh on that directly:
MR. GARZA: …And there is a good reason why Texas is covered under the Voting Rights Act. As this Court indicated in — in LULAC v. Perry, there is a terrible history of historical discrimination in Texas, including discrimination–
CHIEF JUSTICE ROBERTS: The constitutionality of the Voting Rights Act is not at issue here, right?
MR. GARZA: That’s not.