Texas seeks delay of election maps

Texas’s lawyerswill ask the Supreme Court on Monday to delay the implementation of a new redistricting plan for the two chambers of the state’s legislature — a plandrawn up by a three-judge federal District Courtfor use temporarily as election season begins. State Attorney General Greg Abbott announcedSaturday that his office will seek an emergency order to postpone a plan that state officials contend goes far beyond a federal court’s authority to redistrict on an interim basis.

Rewriting Texas’ state legislative districts, as well as its delegation in the U.S. House of Representatives, has become a major issue because of a sharp growth in the state’s population — shown in the latest federal census — with most of the growth among the Hispanic population. That implicates two parts of the federal Voting Rights Act — Section 2, protecting minorities against a reduction in their voting strength, and Section 5, requiring Texas to get federal preclearance for any change in its voting laws. The three-judge District Court in San Antonio has been faced with drawing interim plans on both the state level and for the U.S. House delegation.

State officials are opposed to both interim plans laid down by the District Court, but at this point, the attorney general said, he will be asking the Supreme Court only to stay the interim plan for the state house and state senate. He has indicated that he may later seek a delay by the Supreme Court in the congressional plan, too.(After the 2010 census, Texas’s delegation in the U.S. House grewby four seats, to atotal of 36.)

Candidates for election in the state in the 2012 cycle must start filingtheircandidacies on Monday. Thus, the state will be seeking a delay in the court-ordered redistricting plans so that candidates may file under the new plans drawn up bythe Texas legislature, but displaced on an interim basis by the District Court’s maps.

Texas is one of the states that, because of a past record of racial discrimination in voting, is required by the Voting Rights Act’s Section 5 to get approval for any change in voting — including a rearrangement of election districts — from a three-judge federal court inWashington or from the Justice Department. Texas has submittedthe new state plan crafted by its legislature to the three-judge court, but that court has not yet ruled on its validity. In the interim, the separate three-judge District Courtin Texas was asked to step into assure that Texas would not use a plan that had not been precleared or thepre-census districts that are now invalid because of population shiftsover the past decade.

In2000, Texas’s population was 20,851,820. By2010, the new census showed, it had swelled by nearly 21 percent –to 25,145,561. In that period, theHispanic population grew by2.8 million, the African-American population by 522,570, and the white population by less than 465,000. As a result, the prior state house and senate seating plan, as well as that for the U.S. House delegation, no longer reflected the comparative voting strengths or locationsof the state’s minorities.

The three-judge federal court in San Antonio last week adopted an interim plan for the state legislature that increases the chances that minorities will be able to control more election outcomes, to the likely advantage of Democratic candidates.

That court divided, 2-1, in refusingstate officials’ request to postpone the court-approved plan for the state house and state senate. The order denying a stay of the state house plan is here;a nearly identically worded denial order for the state senate ishere.

The majority stressed that it was not ruling on any of the legal issues involved, but merely establishing a plan for use until the legality of thenew plan drawn up bythe state legislature could be tested.The majority said it had a duty to write atemporary plan because the new plan devised by the state legislature was not enforceable while the pre-clearance review was going on in Washington.

The majority said that the state had been insisting that the federal court was obliged to adopt the legislature’s new plan, except for remedying only very specific violations of federal law. The court, it concluded, could notput into effect a plan not yet cleared in Washington. Its interim plan will give the state an enforceable one as candidate registration begins, it said.

The dissenting judgeargued that, because Texas’s election calendar starts so soon, there is plenty of timefor the three-judge court to consider the weighty issues about its authority to adopt an interim plan that makes very significant changes in districts across the state. “There are myriad issues to be decidedregarding interim, court-ordered redistricting plans,” the dissenting judge said,so the District Court should not put into effectits own plan until those are considered.

The state attorney general indicated in his press release on Saturday that he will be relying heavily upon the dissenting judge’s views in asking the Supreme Court for an emergency stay of the court-approved plan for the legislature.

(The blog thanks Rick Hasen of Election Law Blog for his alert on these developments.)