This morning I called the decision in the Texas redistricting case a big win for Republicans in the state of Texas. Since then, I’ve gotten a fair bit of pushback that the outcome after remand is far less certain (see for example, this ProPublica piece) and even heard of a conference call in which some of the plaintiffs were saying this was really a victory for challengers to Texas’s districts.
It is a fair point to say that we don’t know precisely what’s going to happen on remand, and it is possible that the three-judge court will say it is “likely” that there are Voting Rights Act section 2/constitutional violations with the map and/or there is a “reasonable probability” of one or more section 5 violations. That could well lead to a better map than the Texas map itself.
But here’s why I think it is unlikely that whatever maps come out of the Texas court (and face a possible second emergency appeal to SCOTUS) are not likely to be nearly as good as the maps which came out now.
1. Texas is the one that requested the stay. Texas is the one who put forward the “likelihood” standard (after a Hail Mary argument that the unprecleared maps should be put in place), and it is Texas’s maps (rather than starting from scratch maps) which will govern what the final maps look like.
2. In drawing those maps, the Supreme Court went out of its way not only to say that the three-judge court should not deviate from Texas’s plan any more than necessary to solve any constitutional/voting rights violation. The Court specifically pointed out that the court should not draw any minority coalition districts to achieve voting rights results. This makes it more likely that the majority-minority districts will have more minority voters in them and will not lead to the creation of extra Democratic seats.
3. The three-judge court is likely to be chastened by the unanimous Supreme Court decision. I don’t think judges like being reversed by the Supreme Court, and I don’t imagine these judges will want to overreach and do something to get the court reversed yet again.
Will the maps be better than the Texas legislature’s maps? Probably at least marginally so. Will they be as good as what the three-judge court draw? I’m willing to bet another beer on that one—they won’t.