Michael Li: “What’s Next in the Texas Redistricting Case?”

I asked Michael Li, who knows Texas redistricting issues as well as anyone, to explain some of the confusion surrounding the next stages of the case.  The following guest post is very informative:

What’s Next in the Texas Redistricting Case?

Last Friday’s late night 2-1 decision in the Texas redistricting case inevitably brings the big question – what next? But perhaps fittingly for a case where it took over 2.5 years after trial to get a decision (and only a partial one at that), the question is a bit harder to answer than in the normal redistricting case. There are several reasons why.

  1. The court needs to find a way to rule on the 2013 map. While Friday’s ruling was a sweeping one, it also was a ruling on an old plan – the state’s 2011 congressional plan (Plan C185). But Texas never implemented that plan. Instead, it was replaced in early 2012 by a court-ordered interim map (Plan C235) that Texas subsequently adopted on a permanent basis in 2013 without changes. This fact led Fifth Circuit Judge Jerry Smith to argue in his dissent that claims about the 2011 map had been mooted by the 2013 map. Texas Attorney General Ken Paxton echoed this position in a press release Monday in which he said no changes whatsoever were needed to the current map.

Things aren’t quite so simple, however. For one thing, several of the districts that the majority found problematic in the 2011 plan also exist unchanged in the 2013 plan. Take, for example, TX-35 – the long, spindly district between Austin and San Antonio represented by Lloyd Doggett – which the court found had been drawn predominately on the basis of race and could not be justified as a majority-minority district under Section 2 of the Voting Rights Act. Ditto TX-27, where the court found the placement of the large Latino population of Nueces County in “an Anglo district had the effect and intent to dilute” Latino votes. Both these districts are exactly identical in the two maps, and the changes needed to address infirmities identified by the court could be significant. Dismantling of TX-35, in particular, likely would require sizeable changes to districts in Central Texas as the Austin and San Antonio portions of TX-35 get separated and reallocated. (General Paxton may be on firmer ground in North Texas where the court’s interim plan redrew TX-33 to create an additional minority opportunity district in the DFW area, thus arguably addressing the bulk of the problems the court found in the region.)

But if General Paxton is wrong about the eventual need for changes to the configuration of Texas’ current congressional districts, he is right that no changes are required at this time. That’s because the court bifurcated trial on claims about the 2011 and 2013 maps and thus far has held trial and ruled only on the 2011 congressional map.

To block use of the current map, the plaintiffs will need to find a way to tee up and get a ruling on the 2013 map. There are at least a couple of ways this could happen. One way would be for the court to proceed with trial on the 2013 claims. But given the very substantial overlap of factual allegations about the two maps, a full trial might not be necessary. It is possible that the plaintiffs could file a motion for an injunction of the 2013 map and ask for an expedited ruling. If granted, this would then put Texas in the position of needing to adopt a remedial map before candidate filing opens on November 14 for the 2018 primary.

2. There’s the question of what to do about the “bail in” claims.

At the same time, another issue could impact how the Texas case plays out and that’s the question of what to do with the plaintiffs’ claims to have Texas put back under preclearance coverage using the “bail in” provisions of Section 3 of the Voting Rights Act.

The plaintiffs have asserted that the Texas Legislature intentionally discriminated against minorities when it drew the 2011 congressional plan. And while that plan is no longer in effect, the plaintiffs have argued that intentional discrimination in the drawing of the plan can and should serve as the basis for bail-in.

But although the court agreed Friday with the plaintiffs that the 2011 plan was intentionally discriminatory, the timing of bail-in proceedings remains unclear. That’s because in addition to claims challenging the 2011 congressional plan, most of the plaintiffs also raised intentional discrimination claims about 2011 Texas state house plan (Plan H283), which the court has not yet decided. If the court decides to wait to hear the bail-in claims until it decides the state-house claims – a logical enough position given similar and often overlapping factual allegations – it could still be some time until the bail-in process begins.

In the meantime, a delay in bail-in could delay consideration of claims plaintiffs have made related to the 2013 maps. Indeed, at least some of the plaintiffs argued at the time of trial that the bail-in question should be decided first because bail-in would change the standard under which the 2013 maps are reviewed. And a delay in review of the 2013 maps, in turn, could delay an appeal of Friday’s ruling to the Supreme Court since absent an injunction of the 2013 map or a resolution of all claims in the case (or severance of some of the claims), there simply is no appealable order under applicable jurisdictional statutes.

3. It is unclear who will redraw the Texas map. A final wrinkle is uncertainty about who will eventually redraw the Texas map.

Ordinarily, when maps are struck down, longstanding and accepted precedent is that legislatures should be given the first crack at fixing them, and Texas is likely to insist that be the case here.

However, because the congressional plan was found to be intentionally discriminatory, plaintiffs could ask the court to redraw the map itself or appoint a special master to do so, and courts have granted such relief in similar situations.

In short, a big win for the Texas plaintiffs but still lots of unknowns.

 

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