US Supreme Court divided over Texas electoral district fight
26 April, 2018, 00:45 | Author: Ted Wilson
"There is absolutely no evidence in plaintiffs' briefs that somehow the Legislature was trying to lock in discriminatory districts", he said.
"What does the piece of paper say here?" he asked Texas Solicitor General Scott Keller, who conceded that there was no "magic word" of preliminary injunction.
"What does the piece of paper say here?" a visibly annoyed Justice Stephen Breyer said, pointing to an August order by a three-judge federal panel in San Antonio that found the state acted nefariously in adopting maps that undercut the voting strength of Hispanics.
The case covers two congressional districts in the Lone Star State but mostly several state house districts.
One day before Perry signed the map into law, however, the Supreme Court invalidated the part of the Voting Rights Act that required Texas to seek court approval of its redistricting plans. This meant, it reasoned, that the adoption of the 2013 plans perpetuated that discrimination and was "not an attempt to adopt plans that fully complied with" the Voting Rights Act and the Constitution, but instead "a litigation strategy created to insulate" both plans from any more legal challenges.
In 2012, the court in San Antonio imposed an interim map for the 2012 election. If the justices can't agree to send the case back to district court for lack of jurisdiction, the conservatives on the court seem ready to buy the state's argument that it did the best it could when it redrew its maps in 2013.
At Tuesday's hearing, Chief Justice John Roberts highlighted the unusual situation of a court finding its own map to be tainted with racial discrimination. The district court agreed despite the fact that it is the author of 2013 plan.
The plaintiffs argue that those maps continue to discriminate against Hispanic voters, who have ballooned in Texas in the intervening years.
The state's defense of the 2013 strategy rests on its claims that it was taking the lower court at its word and working to end the litigation when it adopted the map it approved - an initiative that should be praised, argued Deputy U.S. Solicitor General Edwin Kneedler, who represented the about-face by the federal government in the case.
"If this is not a basis on which a legislature can rely on a federal court's opinion, I'm not sure there's any breathing space left for the legislatures engaging in redistricting to honor both their constitutional and VRA obligations", Keller said.
"It's been a long road", said Texas NAACP lawyer Robert Notzon, a co-counsel on the case. "Aren't we obligated to look at the full picture?" Justice Sonia Sotomayor asked. "We've won three times in the lower courts where a majority of the judges were Republican". He also insisted the Legislature was doing its best to end a lengthy round of litigation.
"Are you ending the litigation or are you ending the possibility of a court stopping you from discriminating?" The battle over whether the court should be hearing the case is likely to be an issue in the oral arguments on Tuesday.
Keller insisted that, because of the proximity to the 2018 election and the short time it gave the state to respond, the court's order was effectively an injunction. The state appealed, and the Supreme Court announced in January that it would weigh in.
It seems more than possible the justices will not get to the merits of this case.
The Supreme Court is now weighing two other gerrymandering cases, involving electoral maps drawn by Republicans in Wisconsin and Democrats in Maryland.
Attorneys for the voters echoed these concerns that the case was prematurely before the court.
Edwin Kneedler, the USA deputy solicitor general arguing on the side of Texas, took issue with the district court giving Texas only three days to decide if it would call a special legislature to try to fix its maps.
Earlier this week, Buch-Jepsen called the case "so heinous and repulsive that as a prosecutor, it renders you speechless". Instead Madsen laid next to Wall's body for a couple of hours before deciding to dismember it.
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