EDGAR, are you cheering? Supreme Court says 'grounds for concerns' with Texas redistricting maps

Evening round-up

Earlier today the Court issued a per curiam opinion in the Texas redistricting case, Perry v. Perez. In that case, the Court returned the judge-drawn interim legislative district maps to the district court, with instructions to redraw the maps with greater deference to the redistricting plan already created by the Texas legislature and currently awaiting preclearance from the district court in Washington, D.C. The Court’s decision was followed shortly thereafter by a brief order staying the decision of a three-judge district court panel in a West Virginia redistricting case.

Lyle Denniston of this blog covered the Court’s opinion here and the order here; Greg Stohr at Bloomberg similarly covers both the opinion in Perry and the order in the West Virginia case. Coverage of the opinion in Perry is also available from Adam Liptak at the New York Times, Mark Sherman of the Associated Press, Joan Biskupic of USA Today, Robert Barnes at the Washington Post, David Savage of the Los Angeles Times, Ariane de Vogue of ABC News, Tom Curry at MSNBC, Tony Mauro at Texas Lawyer, Mike Sacks at the Huffington Post, Mark Memmott of NPR’s The Two-Way blog, Adam Bonin at Daily Kos, Warren Richey at the Christian Science Monitor, Gary Martin and Nolan Hicks at San Antonio-Express News, and James Vicini at Reuters.

From the blogosphere, not surprisingly, the Election Law Blog has been quite active all day with multiple posts from Rick Hasen (here and here) and Rick Pildes. (A big thank you goes to Rick Hasen, who collected much of the coverage in this round-up earlier in the day for his blog.) Michael Li’s Texas Redistricting blog has a number of posts on the decision, including reactions from advocates and parties involved in the case. More blog coverage comes from Aaron Blake at the Washington Post’s The Fix blog, Bill Mears at CNN’s Political Ticker blog, and Ilya Shapiro of Cato@Liberty.

UPDATE: Court rejects Texas maps, delays W.Va. map

UPDATE 12:09 p.m. Two hours after issuing its ruling on Texas’s redistricting dispute, the Supreme Court put on hold a lower court’s decision striking down the West Virginia legislature’s new plan for electing that state’s three members of the House of Representatives. The lower court ruling will be on hold until the Justices decide a coming appeal by state officials. The Court’s order is here. A separate post will appear shortly.

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The Supreme Court on Friday unanimously overturned orders issued by a federal court in Texas that drew its own new maps for legislative districts, and ordered it to reconsider. In an 11-page unsigned opinion, the Court said that the three-judge District Court in San Antonio may not have used the “appropriate standards,” which the Court spelled out in some detail. Justice Clarence Thomas, in a separate opinion, repeated his view that a key federal voting rights act implicated in the Texas case is unconstitutional. The decision is here.

Because of Justice Thomas’s view about Section 5 of the Voting Rights Act of 1965, he would have ordered the San Antonio court to let Texas use its own maps without change for the 2012 elections. However, the other Justices did not accept that approach, instead ordering the court in Texas to start with the state’s plan but also to make some rulings about whether any parts of it are likely to be nullified in court.

The Court ordered its ruling into effect immediately, thus stressing the importance of moving rapidly on a dispute in which there has been a Feb. 1 deadline for creation of new maps for the election of members of the Texas state legislature and its 36-member delegation in the U.S. House of Representatives. The Justices themselves produced their opinions just 11 days after lawyers had argued the case.

When the case is taken up again by the San Antonio court, it is now under orders to use a series of maps drawn by the state legislature last year “as a starting point” for crafting any new districts. Although Texas’s own maps have not yet been legally cleared in Washington, as Section 5 of the Voting Rights Act requires, the Court said that does not mean that the legislature’s maps, or the policies that lay behind the creation of those maps, “can be disregarded by a district court drawing an interim plan.”

The San Antonio court is judging challenges to the Texas maps only under a different part of the Voting Rights Act — Section 2 — and under the Constitution. A federal District Court in Washington this week began a trial of the Section 5 issue. The Supreme Court told the San Antonio court not to prejudge what the Washington court may do under Section 5, but the Texas court is under a duty to decide whether it is “reasonably probable” that parts of the plan will not get cleared under Section 5.

Starting with Texas’s own maps, the Court told the San Antonio tribunal, it is to take guidance from them about state policy judgments “unless they reflect aspects of the state plan that stand a reasonable probability of failing to gain” clearance in Washington.

Turning to its own past precedents, the Court — citing its 1996 decision in Lopez v. Monterey County — said that a District Court may not adopt “as its own” a state plan that needs Washington clearance but does not yet have it. However, the precedents “say nothing about whether a district court may take guidance from the lawful policies incorporated in such a plan for aid in drawing an interim map.” Turning then to its 1982 decision in Upham v. Seamon, the Court said that a district court has a duty to “defer to the unobjectionable aspects of a state’s plan” even in a situation where clearance was sought but had been denied.

The Justices flatly rejected the declaration of the San Antonio court that it was “not required to give any deference” to what the legislature had crafted. The lower court was wrong, the Court added, “to the extent” it “exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of ‘the collective public good’ for the Texas legislature’s determination of which policies serve ‘the interests of the citizens of Texas.’ ”

Further, the Court wrote, “because the District Court here had the benefit of a recently enacted plan to assist it, the court had neither the need nor the license to cast aside that vital aid.”

Justice Thomas, writing for himself, made clear that he holds to the view that the entire structure of Section 5, requiring some states and local governments to get Washington legal approval before they may put into effect any change in their election laws, is unconstitutional. That constitutional question is under new review in the D.C. Circuit Court, and is likely to be raised further by state or local governments governed by Section 5.

In Friday’s ruling, the other members of the Supreme Court did make a passing reference to the doubts that the Court had previously expressed about the burdens that Section 5 puts on the sovereign interests of state governments. In ordering the San Antonio court to give more heed to the redistricting maps fashioned by the Texas legislature, the Court’s opinion said that the “serious constitutional questions” raised by Section 5′s “intrusion on state sovereignty” would “only be exacerbated” if that law “required a district court to wholly ignore the state’s policies in drawing maps that will govern a state’s elections, without any reason to believe those state policies are unlawful.”

The new ruling, beyond its mandate to lower courts to look more generously on state election policies that underlie election law changes, sought to give the San Antonio court some very explicit guidance by citing specific ways in which that court either had made an error, or had left its rationale unexplained. It will now be up to the court in Texas to establish new mechanisms, with the aid of lawyers in the case, to get redistricting maps in place in time. The February 1 deadline to which the Texas court has previously referred is necessary to assure that new maps are in place so that the Texas primary elections can go forward, as currently scheduled, on April 3.

While it is conceivable that the primary date may have to be postponed as it was once earlier, there is likely to be strong resistance to that among political parties and election officials in Texas. This resistance will put a premium on the District Court moving with dispatch to carry out the orders that it got on Friday from the Supreme Court.

New view on one-person, one-vote?

In its second ruling Friday on courts’ power to draw new election districts, the Supreme Court in a West Virginia case raised doubts about the authority of federal District Courts to require states to achieve absolute equality of population in drafting new voting boundaries. In a brief order, found here, the Court blocked a federal court order that insisted that “zero variance” in population was now the constitutional norm in new redistricting cases in order to satisfy the one-person, one-vote mandate.

The 2-1 ruling January 4 by a three-judge District Court in Charleston will remain on hold, the Justices’ order said, until the Court has received and decided an appeal of that ruling. The practical effect seems to be that West Virginia can go ahead with elections this year under a plan crafted by its state legislature for election districts used in choosing the state’s three members of the U.S. House of Representatives. There very likely is insufficient time for the appeal to be processed and decided during the current Court Term, running through late June.

The Charleston court said that it is now possible, with more sophisticated computer software, to draw election districts with virtually zero population differences between them, and since that is possible, it is constitutionally necessary — unless a state can justify any deviations from zero as necessary to satisfy a specific redistricting policy in that state. The majority of the panel found that the West Virginia legislature had not met that test, and, in fact, had not justified any deviation at all from equality of population among the three congressional districts.

The District Court had not adopted a substitute plan of its own, and, in fact, stayed further proceedings after state officials had gone to the Supreme Court for a stay of the ruling. The primary election in West Virginia is set for May 8, and candidates who wish to run in that primary are now filing their papers, and may continue to do so through January 28. The candidates must specify the district in which they will run, and Friday’s Supreme Court appeared to assure them that the district lines will be those laid down by the state legislature. One of the goals of the legislature’s plan was to assure the state’s two Republican members of the House — Reps. Shelley Moore Capito and David McKinley — that they would not have to run against each other in the GOP primary for the same seat.

Because the Supreme Court’s order delaying the lower court decision contained no explanation, there is no way to know just why the Justices acted. But the core issue raised by state officials in their stay application (Tennant, et al., v. Jefferson County Commission, et al., 11A674) was whether state legislatures in drawing new congressional maps must do everything they can to achieve absolute equality in the population assigned to each district. A stay order, however, is not a guarantee that the Supreme Court will ultimately overrule the lower court and reject the equal population principle as that court applied it. One factor that the Court does consider in granting a stay, though, is whether there is a reasonable likelihood that the lower court will be overturned at the end of the review process.

The Court’s one-two action in new redistricting cases Friday were the first it has issued as a new wave of redistricting has occurred across the country in the wake of the 2010 federal Census. When a new Census is taken, it often shows that a mobile population has shifted in the intervening years, and district boundaries grow out of date and new maps need to be drawn. In the Court’s first ruling Friday morning, it laid heavy stress upon its view that, when a new redistricting map is challenged in federal court, the court should not “take up the legislature’s task” for itself. Redistricting, the Court said once again, quoting prior precedent, “is primarily the duty and responsibility of the state.”

In fact, in the Texas opinion that emerged Friday, the Court made a passing mention of its doubts about the need for federal courts to push for absolute equality in new districts’ populations. One of the reasons the lower court in the Texas case had erred, the opinion said, was in altering a state legislature’s map “to achieve de minimis population variations” without a legal reason to do so. A “de minimis” variation, of course, is not zero variation, but something above that.

In the West Virginia congressional redistricting map crafted by its state legislature, the population variation that the District Court found to be unconstitutional was 0.79 percent. The state officials, in challenging the ruling that this much variation was too great, noted that the Supreme Court in a prior ruling had said that a variation of that size was “minor” and thus could be tolerated even under the one-person, one-vote principle.

It thus appeared that the challengers to the West Virginia legislature’s map may have a difficult time convincing the Justices that 0.79 percent variation, by itself, is invalid.

Under the Court’s Rules, the state officials who obtained the stay on Friday have 60 days after they file a formal notice of appeal in the District Court to file an appeal with the Supreme Court. In the West Virginia case, if the full time allowed is actually taken, the appeal would not reach the Justices until early March. Unless the case were put on an exaggeratedly expedited schedule, it could not be heard and decided in the current Term.

The request for a stay by West Virginia officials had been filed with Chief Justice John G. Roberts, Jr., who acts as the Circuit Justice for the part of the nation that includes West Virginia (the Fourth Circuit). The Chief Justice shared the issue with his eight colleagues, resulting in the order Friday afternoon. There was no sign that any Justices opposed the order.