UPDATE: Lyle Denniston's updated post reports that the petitions granted raise issues including the constitutionality of mid-decade redistricting and voting rights issues. The lower court opinion (not published, but available on Westlaw at 4 Election L.J. 321) rejected the argument that mid-decade redistricting is unconstitutional ("The rule the University Professors and other plaintiffs propose would require us to apply an established doctrine in a novel way, with uncertain basis and effect. We add to these concerns the question of whether the entire contention is outside the mandate of the remand order.") It also failed to reconsider the voting rights issues ("The G.I. Forum, Congresswomen, and Texas-NAACP on remand return to their claims that the Texas plan impermissibly burdens minority voters in violation of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Each would tie these claims to partisan gerrymandering. The contention is that these violations occurred in the effort to gain partisan advantage, however else the effort may be flawed. We examined and rejected all of the claims in detail in our previous opinion. [FN86] As these claims are beyond the scope of the mandate we are not persuaded that we should revisit them.")

Any examination of the Voting Rights issues will be done in the shadow of controversy over the DOJ's granting of preclearance to the Texas redistricting under section 5 of the Act. That issue is not directly before the Court but the analysis in the now-leaked report---and the politics surrounding preclearance---could color how at least some of the Justices view the voting rights issues in the case.

http://blog.lls.edu/cgi-bin/mt/mt-comments.cgi?entry_id=4610

Breaking News: Supreme Court Agrees to Hear Texas Redistricting Case; Will a Justice Alito Make a Difference?

After so many relistings, this is a surprise. According to Lyle Denniston, the Court agreed to hear four of the seven appeals. "Those four appear to raise many if not all of the key issues, including whether the Court can fashion a standard for judging when partisan gerrymandering is excessive."

This case originally was sent back for reconsideration in light of Vieth v. Jubelirer. In that case, the Court split 4-1-4 (more details here), with four Justices believing partisan gerrymandering cases non-justiciable, four Justices wanting to impose a reinvigorated test for judging partisan gerrymanders, and Justice Kennedy in the middle, agreeing the cases were justiciable, but rejecting all proposed tests for separating impermissible partisan gerrymanders from the permissible use of party information in redistricting. Both Chief Justice Rehnquist and Justice O'Connor were in the block of 4 urging non-justiciability.

So what does the replacement of Rehnquist for Chief Justice Roberts and the likely replacement of Judge Alito for Justice O'Connor mean for the outcome in this case? It would mean nothing unless either of these Justices were to switch positions from their predecessors and agree such cases should be justiciable (putting those Justices in line with the four more liberal members of the Court---though it is not clear that this is a liberal-conservative split). It could be that Justice Kennedy also has finally decided where he stands on the question. The case will likely be argued in April. Stay tuned.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org
  

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org