SCOTUS hears arguments about TX redistricting, leaves us guessing

Allow me to cut to the chase: the Texas primary election date (now April 3, previously March 6) is likely going to be shifted to later in the year again.

Well aware that it must act swiftly, the Supreme Court on Monday pondered two simple ways and one considerably more complex way to let Texas go forward with its 2012 elections for state legislature and Congress, but left open the possibility that Texas’ present election calendar might have to be stretched out.  In a 68-minute argument on three redistricting cases from the Lone Star State, the Justices eagerly explored specific solutions to an unusually tangled controversy, and got into the counting of days open for them to act.

The simplest plan was to let Texas do what it wants -- use the redistricting maps its state legislature drew earlier this year, unchanged. But only Justice Antonin Scalia seemed eager to embrace that approach. The next most simple plan, and one that seemed likely to get at least grudging support from the two legal combatants, was to let Texas use any part of its maps that have not been specifically challenged in court, and then require it to bear the burden of proving that the other parts were valid, too, before it can use those parts. It was an idea floated late in the argument by the junior Justice, Elena Kagan.

Justice Anthony Kennedy's idea, ominously predicted here, is to ignore Section 5 of the Voting Rights Act.

Potentially more complex was an idea put forth by Justice Anthony M. Kennedy, to take completely out of this case any consideration of Section 5 of the Voting Rights Act, and confine it to direct questions of what parts of the Texas plan violate Section 2 of that Act, violate the Constitution, or violate one-person/one-vote guarantees. So far, that plan would put the next step up to a federal District Court in San Antonio, whose “interim” maps are under challenge...

What Kennedy appeared to be suggesting was that the San Antonio court — the only lower court whose action so far is now before the Justices — should confine itself to Section 2 and leave the Section 5 dispute to the Washington court. He did concede at one point, however, that there were potential complications with that, because the Washington court also had before it, in addition to Section 5 challenges, some challenges under Section 2 and the Constitution. As Kennedy mused over the thought, he said, almost inaudibly, “That doesn’t work.”

Moving down a little further in the article, there is this:

After several of the Court’s more liberal Justices had said, in questioning Clement, that Section 5 barred Texas from using its legislature’s plans until they had gained clearance in the Washington court, Justice Scalia commented to the federal government’s lawyer that ‘that is not an absolute rule.” Allowing Texas to use its own maps, the Justice said, would be a “reasonable exception to a non-absolute rule” about the priority of Section 5′s clearance requirements. There was no indication that any other Justice picked up on that notion.

While the federal lawyer, Principal Deputy Solicitor General Sri Srinivasan, was making his argument, Justice Kennedy said “the problem with this case” was that the San Antonio court was dealing with “a Section 2 suit,” and yet “Section 5 is driving it.” Section 5, Kennedy went on, puts some states “at a tremendous disadvantage” as they try to defend themselves against a Section 2 lawsuit while they are simultaneously trying to get clearance for their election changes under Section 5. “Why,” Kennedy wondered, “should Section 5 take precedent in a Section 2 suit.”

Kennedy did not seem content with Srinivasan’s suggestion that, when a state was covered by Section 2, “it can’t help but drive” what a court like the San Antonio court can do even though that court had no authority to rule on the Section 5 aspect of a state election plan.

Section 5 of the VRA, also known as pre-clearance by the DOJ of proposed maps by certain states due to their history of voting rights abuses, is eventually going to get struck down by this Court. Perhaps not in this case, perhaps it will only be frayed a bit around the edges, but its day with the executioner is coming. The signs seem clear enough to me, but most on-hand observers -- particularly the ones who are lawyers, unlike me -- seem more upbeat; the only thing coming out of today's hearing that they agree on is that the state's primary elections are probably moving to later in 2012, perhaps May at this point.

That's OK with me; they used to be in May for years before Texas tried to get in the Super Tuesday sweepstakes.

One more thing...

Because the Court has been told that new maps must be in place by February 1, if the presently scheduled April 3 primary is to go forward, the Justices are expected to act quickly, though on no specifically known timetable. It is conceivable that they could issue a fairly brief order, with an explanation to come in a later opinion. Both of the two District Courts involved in the Texas cases have taken that very approach. However, if the outcome the Supreme Court chooses is to include new guidance for the San Antonio court, that presumably could not await the preparation of a later opinion.

And one last thing specific to Section 5 from Harvey Kronberg:

In one of the weekend talking head shows, Attorney General Greg Abbott lead with a core argument in challenging the Voting Rights Act. He said there was a fundamental shift because Texas Republicans were electing Hispanics.

His comments were part of his explanation about the arguments before the United States Supreme Court this afternoon which some see as a possible vehicle for overturning key elements of the VRA.

But General Abbott’s argument was misleading. The Voting Rights Act is less about election outcomes than it is election inputs.

The Voting Rights Act is about enabling African Americans and Latinos to impact the outcome of elections as communities of interest -- not guaranteeing a proportional quota of brown and black faces in a legislative body.

The VRA is intended to prevent the bank shot disenfranchisement of minorities that results by splintering their communities into politically neutered entities.

Harvey is, as always, correct.

Update: Republican lawyer and blogger Robert Miller has his take.

Update II: And some additional insight from HK.

Several justices queried counsel on both sides of the case on whether pushing back the primary date further into the spring or early summer would pose a problem. At one point, Justice Sonia Sotomayor asked Jose Garza, who presented oral arguments for the plaintiffs challenging the Texas maps, a detailed set of questions on how late could a decision be handed down to have a late June primary (my emphasis). The last Presidential primary this year is June 26. After doing some back of the envelope math, they seemed to agree that late March would be the latest possible date for establishing interim maps.

Late March? The primary is currently scheduled for April 3. This part makes no sense to me. And a ray of light:

Many court observers in recent days have speculated on whether Supreme Court justices hostile to the pre-clearance section of the Voting Rights Act would seize on this case to make a further statement on the section’s viability. But Chief Justice John Roberts seemed to take such speculation off the table when he pointedly interrupted Garza to state that the VRA’s constitutionality wasn’t at issue today.