Someday, perhaps when your grandchildren have grandchildren and the Cowboys have been pried away from some Jones scion's cold, dead hands, Texas will adopt statehouse and congressional maps that are minimally acceptable to all interested parties. Until that day, however, the state's political parties, voters and interest groups will continue to battle it out over who gets to draw the lines and in what shape, as they did at the U.S. Supreme Court on Tuesday.
Tuesday's oral arguments were the culmination of almost a decade of fighting over districts drawn by the Texas Legislature after the 2010 census. In 2012, a U.S. District Court in San Antonio ruled that the maps unfairly discriminated against Texas minority voters by concentrating them into certain legislative districts and drawing them out of others, a process known as "packing and cracking."
A year later, the Legislature redrew the congressional and legislative maps, largely basing them on recommendations made by the San Antonio court. In the years since, the lawsuit against the maps, led by the legislature's Mexican American Legislative Caucus, bounced around among the courts before the same San Antonio federal court that invalidated the maps in 2012 again found them unconstitutional last year.
The Supreme Court agreed to hear Texas' appeal of the lower court's ruling in January, leading us to Tuesday.
Here's what we learned:
The court's liberal justices doubt that the Supreme Court should be hearing the case at all.
Before Texas Solicitor General Scott Keller could make it through his preamble, he was interrupted by Justice Sonia Sotomayor, who questioned whether the Supreme Court should be hearing the case because the lower court hasn't issued an injunction finally stopping the state from using its current districts. The Supreme Court can't possibly hear the case every time a lower court declares a legislative boundary unconstitutional, Justice Stephen Breyer said.
“What does the piece of paper say here?” Breyer said, pointing to the lower court's ruling. “It seems to me, the piece of paper says, ‘Come to court.’ Now if we're going to call that a grant of injunction, we're going to hear 50,000 appeals from the 93 — however many three-judge courts there are."
Keller argued that the lower court order was effectively an injunction because it prevents the state from using its current boundaries during the 2018 election.
"We would have faced contempt [of court charges] if we would have told the district court, no, we are not going to engage in the redistricting that you have ordered on an expedited basis," Keller said.
Conservatives on the court appear ready to side with the state.
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.
Chief Justice John Roberts said the state deserved a "presumption of good faith" from the plaintiffs in the case because the Legislature did the best it could to follow the directions of the lower court five years ago.
"On the merits, it seems a strong argument, which you dismiss as just sort of wanting to end the litigation, which is usually a good thing, for the Legislature to say, OK, this is the plan — I understand it's preliminary and all that — but to move things along, this is the plan the district court drew. That's what we're going to go with," Roberts told plaintiffs' attorney Renea Hicks.
Where are we now?
If Justice Anthony Kennedy sides with the court's liberals, either on the jurisdiction question or the merits, the case will head back to U.S. District Court in San Antonio. If the plaintiffs win on the merits, the district court will begin the process of redrawing two congressional districts and nine state house districts the court has ruled unconstitutional. Three of those districts — 103, 104 and 105 — are in Dallas County. (The plaintiffs allege that Texas Republicans unconstitutionally packed House Districts 103 and 104 in western Dallas County with Latino voters in order to protect white incumbent Rodney Anderson in House District 105.)
If the cases is sent back to Texas because of jurisdictional issues, the whole saga will play itself out again if and when the lower court formally blocks the state's map.
If Kennedy sides with the court's four conservative justices, Texas' maps will remain in place, as they are, until after the 2020 census.
After the hearing, Texas Attorney General Ken Paxton expressed confidence that the Supreme Court would side with the state.
“The double-standard is painfully obvious: When the court draws the maps, they are lawful; when the Texas Legislature adopts the very same maps, somehow they are not," Paxton said. "I appreciate that the Supreme Court granted a stay and heard our case. Solicitor General Keller and the DOJ presented powerful oral arguments in defense of Texas’ redistricting maps, and I anticipate a favorable decision.”
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Dallas state Rep. Rafael Anchia, who represents one of the affected house districts — 103 — and is the head of MALC, showed his reaction to the hearing with a happy GIF on Twitter.
The Texas Democratic Party accused Texas Republicans of trying to keep things the same in a state that consistently ranks in the bottom five in the country in voter participation.
"Texas Republicans are fighting to maintain the status quo of systematically rigging the game against people of color, end of story. That’s not just our opinion, that’s the federal court’s ruling. Republicans intentionally drew maps that ensure elections are not competitive; as a result, Texas is ranked 49 out of 50 in voter turnout," said Gilberto Hinojosa, chairman of the Texas Democratic Party. “Justice will soon be served, but we aren’t taking anything for granted. Texans need Democratic leadership now. It’s time Texans vote their values, elect more Democrats to office who will fight for free and fair elections.”