SCOTUS Listens to Redistricting Fight
Oral arguments heard in DC Monday
By Richard Whittaker,
4:57PM, Mon. Jan. 9, 2012
Think an April 3 Texas primary is bad? How does June 26 grab you? The possibility of a further delay in primary season was raised today as the Supreme Court of the United States argued over how to resolve the redistricting debacle.
This afternoon, representatives of the State of Texas and the United States government presented oral arguments to SCOTUS. There was talk about specific districts, like the 'deer and two antlers' plan for El Paso's Congressional district 16, but it all came down to a simple argument: What base plan should the three-judge panel that drew the interim maps have used? The state argues that they should have just tweaked whatever problems they perceived in the legislature's map, approved last session. However, the court actually modified the districts approved in last decade's redistricting, on the basis that they were the last legal maps. Chief Justice John Roberts, a long-time critic of the preclearance system, summed up what could become the core argument here: "The district court in Texas cannot assume or presume what the district court here in D.C. is going to do."
The state's attorney, Paul Clement, said the panel had overstepped its authority and that it should only have redrawn the map "only if it is identifying specific statutory or constitutional violations or a substantial likelihood thereof." By reverting back to the old maps, he said, the panel "effectively treats the unprecleared plan as a nullity."
Associate Justice Sonia Sotamayor weighed in quickly, asking Clement if he wasn't asking to turn Section 5 of the Voting Rights Act on its head. By saying that the court should merely have tweaked the legislature's maps, she said, "You are asking for more than for guidance. You are asking for deference. You are saying they have to start with the new map even though that map hasn't been approved." Justice Ruth Bader Ginsburg went further down that path, putting out the possibility that SCOTUS could tell Texas to use the legislature's maps only for them to be struck down for failing to pass the preclearance test: What happens then, she asked? "As a practical matter I suppose at that point appellees would go to the court in Texas and say, 'You need to revise your interim maps once again'," replied Clement.
Speaking for the United States, Principal Deputy Solicitor General Sri Srinivasan faced his own grilling, with Associate Justice Samuel Alito thowing severe doubt over the concept of "neutral districting principles," an idea echoed by Associate Justice Antonin Scalia who said he was worried that "the government takes an absolutist approach to the proposition that you cannot use an unprecleared plan for any purpose." Roberts seemed particularly critical of the idea that the panel had simply let the maps evolve out of the base plan, as he felt they had cut some new districts out of whole cloth. However, while Srinivasan conceded that the panel's ruling "are not a model of clarity," he argued that they had been correct in their approach and the panel's maps abided by the principal of one person, one vote.
But what about that June date? A lot of the external arguments have revolved around how long Texas could delay its primaries to resolve this map question, and Alito mused whether Texas could become a Summer primary state instead. Alito and Associate Justice Elena Kagan raised the specter of pushing this SCOTUS decision back until the DC District Court had settled the preclearance issue – an idea that's unlikely to be popular with any Texas politician eager to get campaigning. It also met resistance from Associate Justice Stephen Breyer, who noted the court has an effective date of Feb. 1 to get this resolved. However, the separate preclearance trial is not expected to finish until Feb. 3, and Alito suggested that the best solution could be to let all the other suits play up: If that took extra time, then Texas could conceivably push its primary back to June 26 – the same day as Utah. Allow the 135 days required to print and mail ballots, and Texas may not see a SCOTUS decision until the end of March.