[EL] more on Texas redistricting order

[Rick Hasen]

Analysis: Supreme Court Agrees to Hear (Part of) Texas Redistricting Cases, But Not Partisan Gerrymandering; What Does It Mean, and What About North Carolina?<http://electionlawblog.org/?p=96895>
Posted on January 12, 2018 1:13 pm<http://electionlawblog.org/?p=96895> by Rick Hasen<http://electionlawblog.org/?author=3>
As expected<http://electionlawblog.org/?p=96891>, the Supreme Court today agreed to hear<https://www.supremecourt.gov/orders/courtorders/011218zr_3d9g.pdf> both the state<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-626.html> and congressional<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-586.html> Texas redistricting cases, consolidating them, postponing a decision on jurisdiction (more on that below), and likely (but not certainly) setting them up for argument in April and a decision by late June. The Court did not, however, take up the Texas Democratic Party’s petition<https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-680.html>, which raised a partisan gerrymandering claim. That claim will almost certainly be held until after the Court decides the Maryland and Wisconsin partisan gerrymandering cases and then likely sent back to the lower court in light of those decisions.
The Texas cases are big, important, and exceedingly complex. The record is crazy with details. Issues include violations of the Voting Rights Act, findings of unconstitutional racial gerrymandering, and a finding that Texas acted with racially discriminatory intent. That finding, if upheld, could provide the basis to put Texas back under federal preclearance (or approval) for changes in its voting rules for up to 10 years.
So I was kind of surprised given the complexity and detailed factual record that the Court thought the cases could be consolidated for briefing and argument in one hour.
As for postponing jurisdiction This is an appeal, and usually the Court notes probable jurisdiction (rather than grants cert) when it decides to hear one of these appeals after full briefing. But in both the Wisconsin and Maryland case the Court did the same thing. There, it might make sense, because one of the questions in those cases is whether partisan gerrymandering claims can be heard by the courts or if they are non-justiciable questions. Maybe it makes less sense here, unless the Court thinks Texas’s claims do not present a substantial federal question (though that’s at odds with the Court granting stays in the cases). So this is a mystery that may or may not be solved later on down the line.
Meanwhile, Paul Clement just filed a stay motion<http://electionlawblog.org/wp-content/uploads/17A745-Rucho-v.-Common-Cause-Stay-App..pdf> in the North Carolina partisan gerrymandering case, where the lower court had just ordered the creation of new, less partisan districts under a very short timetable. I expect that the Court will order a response, and there’s a good chance this stay is granted. But in the ordinary course the Court would not get briefing in time to agree to hear the case this term. Most likely is that it will get a petition before the end of the term, and then remand in light of the Wisconsin and Maryland cases. But the Court could grant the appeal, which was already filed as well on an expedited basis, and set this one too for argument.
The benefit of hearing the North Carolina case separately is that it presents the cleanest case for a finding of partisan gerrymandering, given that the state admitted it.  As I recently explained<http://electionlawblog.org/?p=96824>:
The result is not a big surprise given what North Carolina did here. After its earlier redistricting was declared a racial gerrymander, it came up with a new plan using only political data that it described as a partisan gerrymander on its own terms. It did this as a defense against a future racial gerrymandering claim. As the court explained at page 16, NC “Representative Lewis said that he “propose[d] that [the Committee] draw the maps to give a partisan advantage to 10 Republicans and 3 Democrats because [he] d[id] not believe it[ would be] possible to draw a map with 11 Republicans and 2 Democrats.”  If there’s any case that could be a partisan gerrymander, it’s this one.
What Justice Kennedy must know is that future gerrymandering will look like NC, if the Court does not act in Wisconsin or Maryland.
I said yesterday this could well be a blockbuster term on redistricting, and the Texas order today just raises the stakes. We might say they are now Texas-sized stakes.
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Posted in redistricting<http://electionlawblog.org/?cat=6>, Supreme Court<http://electionlawblog.org/?cat=29>, Voting Rights Act<http://electionlawblog.org/?cat=15>


--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
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Irvine, CA 92697-8000
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http://electionlawblog.org<http://electionlawblog.org/>


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