A Couple of Interesting Points Re: Texas Stay Request

1. These briefs (lead author Paul Clement) are exceptionally well done and clear.  This is one of the murkiest cases I’ve seen, but the brief is clear and strong.  The Upham point on deferring as much as possible to the plan submitted for preclearance by Texas is the most compelling argument; the Shaw claim the least so.

2. If the Court agrees with Texas on the merits, the Court could grant the stay, delay the primaries, and remand for the three-judge to redraw plans complying as much as possible with the map submitted for preclearance without violating the Constitution or the VRA.  Or it could do this, as suggested in the stay request: “Alternatively, the Court should stay the decision below, treat this stay application as a jurisdictional statement, note probable jurisdiction, and set the case for expedited briefing and argument. As Judge Smith made clear in his dissent from the denial of Texas’ stay request, the proper standard for imposing this sort of drastic “interim” relief is only the most obvious problem raised by the decision below. There are also numerous other issues on which this Court’s guidance is urgently needed as the 2012 election cycle rapidly approaches.”

3. If the Court denies the stay and these maps stand, there’s now going to be the question whether they become the new baseline in the section 5 preclearance suit before the three judge court.  This footnote appears in Texas’s stay application: “In addition to the harm inherent in being forced to conduct elections based on an ultra vires, judicially imposed map, ‘[t]he plaintiffs then predictably will claim that the interim map ratchets in their favor by constituting a new benchmark for preclearance by the D.C. Court, remedial action by this court, or future action by the Legislature.’ Order (Doc. 528) at 14 (Smith, J., dissenting), Perez, et al. v. Perry, et al., No. 5:11-cv-360 (W.D. Tex. Nov. 23, 2011) (citations omitted). As Judge Smith predicted they have done precisely so, in a joint motion with the United States to abate the Section 5 proceeding. See United States’ and Intervenors’ Motion to Hold Case in Abeyance (Doc. 108) at 2, No. 1:11-cv-01303 (D.D.C. Nov. 22, 2011).”

4. The responses to the state’s stay application on the state legislative plans are due Thursday at 4.  There is no timetable released yet for this stay request—but the briefs are extremely similar, and it would not surprise me to see a Friday deadline for a response on the congressional stay application.

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