1. There’s been speculation that the Court might adopt a “compromise” solution, first floated at oral argument by Justice Kagan, in the Texas cases. If so, my view is that this would be one of those “compromises” that actually gives one side — in this case, Texas — 90% of what it wants. Whether that is good or bad is a separate matter, but I want to explain why Texas benefits most from this compromise.
The challengers’ position is that the plans Texas enacted in 2011 should be given no legal effect because they have not yet been precleared. Instead, the three-judge federal court in San Antonio should be obligated to start with the last legally adopted redistricting plan, which pre-dates the 2010 Census. Texas argues that the San Antonio court should be obligated, instead, to start with the 2011 redistricting plans. But Texas already concedes — as it must — that the court cannot follow those plans if the court finds there is a substantial likelihood that the plans (or districts within them) would violate Section 2 of the Voting Rights Act (VRA) or the Constitution. That concession is no surprise: a federal court cannot, of course, adopt a redistricting plan that the court concludes violates federal law. Justice Kagan’s approach would still require the San Antonio court to start with the 2011 plans. That is the key point, for that is the major legal requirement Texas is after. And it wouldn’t change the substantive requirement that the court must accept those plans and the policy choices embedded in them, unless the court concludes that there is a substantial likelihood the plans violate federal law. All that her approach would do is shift the burden from the challengers to Texas on that question. In the context of the issues at stake, I consider that a relatively minimal benefit to the challengers — one that I do not believe would be likely to change the actual outcome on the substance of the litigation. That is why Texas would gain far more than it would lose through this “compromise.”
2. Some journalists and legal commentators have hyped this case as if it will have major consequences for Texas or for redistricting law. As I have said throughout, I think the case involves a messy but ultimately minimally significant set of procedural issues; I don’t even think the Court’s decision will have any significant effect on the districts Texas ends up using for the 2012 election cycle. I anticipate that within a month or so of the Court’s decision, one or both of two actions will occur that will immediately supersede the Court’s decision. And it will be at that point (or points) that the serious issues will actually be joined — very likely triggering another round of Supreme Court review, but this time on the issues of genuine substance and importance:
(1). The federal court in D.C. will issue its preclearance decision on the merits. If it preclears the plan, that’s the end of the matter. But based on its earlier opinions, that court seems likely to refuse to preclear at least parts of Texas’ congressional plan. If so, its decision will provide the new starting point from which any federal court plan for Texas’ district will have to be developed. The current fight over the (2) On remand from the Supreme Court, the San Antonio court acts first and concludes (as seems likely already from its initial decision) that the plan has a substantial likelihood of violating Section 2 of the VRA or the Constitution. Either of these actions on the merits will likely make irrelevant the Supreme Court’s coming decision on how to sort through the preliminary procedural wrangles.
If Texas loses the next round in either of these courts (as I expect it will), I would assume Texas would be right back before the Court asking it to hear that case on the merits. And there is a good chance the Court would agree to do so, although its current immersion in the initial procedural skirmishes in Texas might make the Court less anxious to get involved a second time. But the issues about Section 2 and 5 of the VRA involved in the DC and San Antonio courts are of great consequence for this round of redistricting in general, and the Court has shown considerable interest in these questions as it struggles with how to apply the VRA to today’s circumstances. If the Texas cases are back before the Court a second time, that is when the issues of major importance will be faced.
3. Rick Hasen has predicted the Court will decide the Texas cases by the end of this week. I’ll take the bait and predict otherwise. I think the Court has too many knots to untangle, and too many differing views internally, to act that quickly. The Court surely feels some degree of urgency, but I would bet against a decision this week.