In addition to the issues (Vieth and influence districts) that Rick suggested, I think the Supreme Court might well consider two more interrelated issues raised by Judge Ward's dissent, and implicit throughout the litigation:
1.  Are voting rights individual or group rights?  From Reynolds v. Sims through much right-wing rhetoric on affirmative action and other civil rights issues to DeGrandy and Shaw II, justices and others have termed equal protection rights individual.  Thus, in Shaw II, CJ Rehnquist's majority opinion specifically rejected the contention of the state that if there were an area where a minority opportunity district could be formed, the state could alter the boundaries of a congressional district in the general region in order to accommodate partisan concerns.  The theoretical basis for North Carolina's argument was that voting rights of minority voters were group rights.   This is exactly the same argument that Texas makes.  I thought the Session v. Perry majority opinion entirely unpersuasive, not to say evasive, on this point.
2.  Texas from the beginning has been trying to substitute the pre-GA v. Ashcroft Section 5 non-retrogression standard for the Section 2 non-dilution and 14th Amendment non-discrimination standard.  They aren't the same, and the trade-off standard that the Session v. Perry court adopted equates them.  Under Bossier I (as I argued in Colorblind Injustice), all the DOJ could do when presented with a pre-clearance request was to count the number of minority opportunity districts, somehow defined.  If the number was no smaller under the new  than under the old plan, then DOJ had to grant preclearance.  But GA v. Ashcroft changed that, allowing some undefined balance between minority opportunity districts, coalition districts, and influence districts.  Judge Ward discusses this pretty well.  In any event, whereas Bossier I rejected the DOJ regulation that had inserted Section 2 standards into Section 5, Texas in Session v. Perry tried to do the reverse, and succeeded.  It seems to me that there's plenty for the Supreme Court to decide on this issue.
        What I'd like to see the Supreme Court do is to remand the case, directing the 3-judge court to reconsider its decision in light of the Supreme Court's decision in GA v. Ashcroft.  This is what the Court did after a 3-judge panel had reconsidered Voinovich v. Quilter in light of Miller v. Johnson.  The Supreme Court then issued a one-sentence statement remanding the Quilter II decision and directing the lower court's attention to Shaw II and Vera, at which point the 3-judge panel essentially gave up.
Morgan

Prof. of History and Social Science, Caltech
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