The Supreme Court, working late on a Friday, agreed to rule on the constitutionality of three redistricting plans drawn up by a federal court for the two houses of the Texas legislature and its 36-member U.S. House of Representatives delegation, and put those court-ordered maps on hold temporarily. The Court called for expedited briefing, and set a hearing on the cases for Jan. 9 at 1 p.m. The Justices’ action gave Texas much of what its lawyers had sought in their challenge to the three-judge U.S. District Court’s interim maps, which were crafted for use in the 2012 election cycle. The Court’s order is here. It raises the strong possibility of a major new ruling on the power of federal judges to draw up redistricting plans while a state legislature’s own maps are under challenge in court.
Although the state had initially sought only a stay of the interim redistricting plans, it suggested as an alternative that the Court take on the cases itself, and issue a prompt ruling. That is what the Justices agreed to do, putting the cases on its docket for review as 11-713 (the Texas state house case), 11-714 (the Texas state senate case), and 11-715 (the congressional delegation case). What the Court did not do was order any immediate change in the way Texas candidates go about signing up to run in the 2012 primary, now set for March 6. Cases 11-713 and 11-715 go by the same title, Perry, et al., v. Perez, et al., and case 11-714 is titled Perry, et al., v. Davis, et al.
Candidates began filing for seats in the legislature and in the House of Representatives on Nov. 28, and the filing period now in effect was to continue until Dec. 15. Friday’s order made no immediate change in that. It was unclear whether the filing period is now to be interrupted until after the cases are decided, and, if not, what districts would actually be used for purposes of candidates’ filing in the meantime. The three maps drawn by the state legislature earlier this year supposedly cannot be used, because their validity under federal voting rights law and the Constitution is now under review by a different U.S. District Court, in Washington. And the interim districts crafted by the District Court in San Antonio cannot be used because they are now stayed by the Justices’ order.
The Court set this briefing schedule: it consolidated the cases, ordered Texas officials and the challengers to the legislature’s maps to file opening briefs simultaneously on Dec. 21. Reply briefs from both sides are due Jan. 3. The oral argument on Jan. 9 will be for one hour only.
Stay applications such as the ones that put these cases before the Court are usually only for temporary remedies, and, most often, seek simply to maintain the status quo while the underlying decision at issue is reviewed. The Court, this time, converted the applications into what it calls “jurisdictional statements,” which is the label it uses for cases that are appealed directly to the Justices from a three-judge District Court. Federal law provides that challenges to redistricting cases are to be heard initially by three-judge District Courts, with direct appeals to the Supreme Court, bypassing the usual transit through a federal Circuit Court of Appeals.
By granting review, the Court, of course, gave no indication of how it would rule on the constitutionality of the District Court’s interim plans. But the Court appeared to have taken seriously and heard perhaps somewhat sympathetically the Texas lawyers’ argument that a 1982 Supreme Court precedent — Upham, et al., v. Seamon, et al. — strictly limits the power of a federal court to craft its own interim redistricting plan that deviates greatly from one drafted by a state legislature. In the San Antonio District Court, the dissenting judge in the 2-1 rulings at issue had argued that the Upham decision barred a court-ordered map that strayed so far from what the state legislature had drawn.
Because the three cases reached the Justices as stay applications, they did not spell out specifically the legal or constitutional questions being laid before the Court. But it does appear, at least at this stage, that the Court will only be ruling on the validity of the San Antonio court’s decision to draw up interim maps of its own. No lower court has yet ruled on the underlying question of whether any of the districts — for the legislature or for the House delegation — actually violate federal law or the Constitution.
The state’s lawyers told the Court that the “drastic ‘interim’ relief” ordered by the San Antonio court “is only the most obvious problem raised” by its decision. It added that there are “numerous other issues on which this Court’s guidance is urgently needed as the 2012 election cycle rapidly approaches.”
Because the issue of federal courts’ power to craft interim redistricting plans usually arises only after each ten-year federal Census, there are not a great many precedents on how wide that judicial authority reaches. The state said in one of its applications that the drafting of a court’s interim plan may occur only infrequently, but “even once in a decade is too frequent for states to sacrifice their sovereignty in this way or for courts to be put in the untenable position of drawing political lines from scratch.”
While Friday’s order seems to put a hold on further proceedings in the San Antonio court’s review of the Texas legislature’s three maps, there was nothing in the order that would appear to have any effect on the continuing review of the validity of those plans by the District Court sitting in Washington. The Justice Department is taking part in the Washington case, and is making significant challenges there to the maps the legislature drew for the Texas house and for the House of Representatives delegations. Those maps, as well as the one for the Texas state senate, are also under broad challenge in the Washington case by minority and civil rights groups.
The challengers contend that the legislature drew the maps in order to minimize the impact of population shifts since 2000 on the election prospects of Republican candidates, and to reduce the voting influence of the state’s rapidly growing Hispanic population. Since 2000, the state’s population grew by more than one fifth — by 4.2 million — and 2.8 million of that growth came among Hispanics. That made the state legislature districts seriously out of date, and led to an increase of four in the state’s House of Representatives delegation, to a total of 36.
The Supreme Court issued Friday’s order on the three cases shortly before 7 p.m. The applications had initially gone to Justice Antonin Scalia, who handles emergency legal matters from the geographic area (the Fifth Circuit) that includes Texas. The applications started reaching the Court on Nov. 28, and all of the briefing in them was completed on Tuesday. Justice Scalia at some point opted to share the consideration with his eight colleagues, leading to the order which spoke for the full Court with no noted disagreements among the Justices about it.
There was no explanation for the time it took to consider the applications, but the Court has been working energetically in recent days to craft the remainder of its review calendar for the Term, especially with the looming major challenges the Justices face in deciding the constitutionality of the new federal health reform law. Court insiders have indicated that some of the scheduling challenges may be a consequence of the fact that a prominent Washington lawyer — former U.S. Solicitor General Paul D. Clement — is a lead lawyer for Texas in the redistricting cases, and is also a key counsel in the health care litigation, as well as some other cases the Court has under review this Term.
The Obama Administration’s Justice Department has not been involved in the Texas redistricting cases in the San Antonio District Court or in those cases since they reached the Supreme Court, but presumably it will seek to file its views on the cases in coming weeks. The Court’s order on Friday made no reference to amici filings in the cases.
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