As the Supreme Court struggled on Monday to deal with the legal complexities of Texas’s redistricting efforts, Chief Justice John G. Roberts Jr. summed up the court’s quandary:
“So how do we decide,” he asked, between “two wrong choices?”
More than an hour of oral arguments revealed that there might be even more wrong choices. But compromise was elusive, and the deadline is close.
The state says it needs a decision by Feb. 1 to hold primary elections April 3. Even that date is pushed back from the state’s original timetable.
There’s no doubting the importance of the decision: Texas’s booming population means four new congressional seats for the state. The electoral maps will have a big impact on which party claims the seats, and perhaps even which party controls the House of Representatives.
It is also of considerable importance to the state’s Hispanics, who account for nearly two-thirds of the state’s population growth and want to play a bigger role in Texas politics.
But the legal battle over redistricting is being played out in three courts with different missions, and Justice Samuel A. Alito Jr. wondered whether Texas should stand down for a bit.
“Texas has a very early primary,” Alito said. “Some states have them for congressional races in the fall, and the latest presidential primary I think is at the end of June.
“So why can’t this all be pushed back, and wouldn’t that eliminate a lot of the problems that we are grappling with in this case?”
Former Bush administration solicitor general Paul D. Clement, who is representing the Republican-controlled legislature and the redistricting plan it drew, told Alito that of course that was possible, but the timing of primaries is a decision usually left to states.
The maps drawn by the state’s Republican-dominated legislature were signed into law by Gov. Rick Perry (R). But because of past discrimination, Texas is one of the states covered by Section 5 of the Voting Rights Act. That means its electoral laws cannot take effect until they are “pre-cleared” — approved by the Justice Department or a panel of federal judges in Washington.
Texas chose to go the judicial route, but a three-judge panel in Washington found problems and refused to quickly approve the plans. It has scheduled a trial for later this month.
In the meantime, a second three-judge panel in San Antonio drew a new plan, since the current electoral map cannot be used — it would violate “one-man, one-vote” standards because of the population growth.
Texas has asked the Supreme Court to keep that plan from taking effect, even on an interim basis. The judges did not base their work on the plan approved by the legislature, Clement said.
But Justice Sonia Sotomayor said the court could not use even as a guide a plan that had not been pre-cleared. “Doesn’t that turn Section 5 on its head?” she asked. Justices Ruth Bader Ginsburg and Elena Kagan had similar concerns.
Justice Antonin Scalia seemed open to allowing the legislatively drawn plan to be used on an interim basis for the 2012 election. But other justices didn’t seem to support that position.
The Obama administration told the justices that the better option was to allow the use of the judicially drawn plan on an interim basis, even though it thought the court had not fully justified its decisions.
But Roberts told Deputy Solicitor General Sri Srinivasan that sending the maps back for more information seemed like a waste of time “when we are all under the gun of very strict time limitations.”
Kagan wondered whether the justices could direct the Texas court to start its deliberations with the legislatively drawn plans, but put the burden on Texas to prove that they met constitutional standards, rather than on the minority challengers to prove that they did not.
There are three cases in Perry v. Perez.