Updates about ongoing redistricting litigation in the Lone Star State and coverage of election law more generally. This website's goal is to try to make sure the redistricting process and litigation over voting law is as transparent and accessible as possible to the public. Hopefully, it will be of some use to a broad range of interested parties, both lawyers and non-lawyers.
The Supreme Court issued an orderTuesday morning dismissing the Texas Democratic Party’s partisan gerrymandering claim for want of jurisdiction.
The State of Texas had argued in pleadings that the district court’s dismissal of the TDP’s partisan gerrymandering claims did not amount to the granting or denial of an injunction and, therefore, that the ruling did not fall into the class of orders appealable under 28 U.S.C. § 1253. Alternatively, the state argued that if the ruling could somehow be construed as a denial of injunctive relief, the appeal was untimely under 28 U.S.C. § 2101(b) which requires interlocutory appeals to be filed within 30 days of the grant or denial of injunctive relief.
Today’s ruling, however, does not necessarily dispose of the TDP’s partisan gerrymandering claim. The claim still would be appealable once the court enters final judgment in the case - after other appeals are resolved. Or, of course, the plaintiffs or other voters could simply file a new partisan gerrymandering case once decisions in the Wisconsin and Maryland cases come down this summer.
On January 12, the Supreme Court agreed to hear appeals by the State of Texas seeking reverse rulings finding that Texas’ congressional and state house plans intentionally discriminated against minorities and violated the Voting Rights Act.
The high court did not take action on appeals filed the Quesada plaintiffs that the district court seeking to revive partisan gerrymandering claims dismissed by the district court.
The Supreme Court is expected to hear the Texas appeals in April and issue an opinion in late June.
A key fight in the appeals will over whether Texas intentionally discriminated in drawing its 2011 congressional and state house plans and, if so, whether the state cured any intentional discrimination when it adopted court-drawn interim plans on a permanent basis in 2013. If findings of intentional discrimination hold up, Texas could be placed back under preclearance coverage using the bail-in provisions of section 3 of the Voting Rights Act.
Because a ruling is not anticipated until June, the expectation is that it will come too late for any changes to the maps to be implemented for 2018 and that changed maps, if any, would be used for the first time in 2020.
More on the cases, including links to the pleadings and briefs, here.
In one-line orders today (here and here), the Supreme Court rejected a request by plaintiffs in the Texas redistricting case that the Supreme Court expedite appeals by the State of Texas.
The plaintiffs’ requests would have sped up the cases by having the parties forgo the filing of jurisdiction statements (essentially skipping one step in the process) and setting an expedited briefing schedule. This would have allowed the high court to consider whether to take the cases at its January 5, 2018 conference.
The denial of the plaintiffs’ requests means that Texas will have until October 17 and 27 to file jurisdiction statements on the congressional and state house rulings respectively. The plaintiffs then will have up to 30 days to ask the court to dismiss the appeals or summarily affirm (though they could file early to try to expedite the timeline). The state then will have 14 days to file a reply.
At the same time, the plaintiffs have filed cross appeals because while they won many things in the court’s rulings (which the state is appealing), both the congressional and state house rulings also denied some of the relief the plaintiffs wanted. That means a parallel briefing process will play out in conjunction with the cross appeals. The plaintiffs will start by filing jurisdiction statements which are due November 13 and 27 respectively (although they could choose to expedite the process early). The state would have up to 30 days after they file their jurisdiction statements to file a motion to dismiss or have the court summarily affirm and the plaintiffs would have up to 14 days to file a reply.
Afterwards, the cases would be submitted to the Justices to decide whether to hear oral argument. If they take the cases, there would be another round of briefing, known as “briefing on the merits” before the court actually hears argument. Texas also could delay the process by asking for extensions of time - something that often happens in cases before the Supreme Court.
At this juncture, it is hard to say exactly when briefing will be complete or when the cases will reach the Justices since a lot will depend on whether parties will file briefs early or, conversely in the case of the State of Texas, take its full allotted time to file its papers. It is still possible the cases could reach the Justices by early January or perhaps earlier. But it is possible to see the first round of briefing being dragged out into the new year.
Yesterday, the Supreme Court stayed the redrawing of Texas’ congressional and state house maps pending appeal. So what happens next?
First thing is that the appeals move forward. Texas has 60 days from the time the appeals were docketed (August 18 for the congressional appeal and August 28 for the state house appeal) to file a jurisdictional statement with the Supreme Court that tells the court why it has the jurisdiction to hear and decide the appeals.
The state could file early, but let’s assume (not illogically) that it takes its full time - that means the initial filings in the appeals would come on October 17 and 27.
The plaintiffs then have 30 days to ask the court to dismiss the appeal or, alternatively, to affirm the district court’s judgments without oral argument. They also could file early. After a period for the state to respond, the question of whether to order further briefing and set the case for oral argument will go to the Justices who will consider the issue at one of their scheduled conferences. At this juncture, we could be into November.
If the high court decides to set the case for argument (very likely, if not, in fact, a certainty), then the parties will file further briefs. Texas will have 45 days to file its opening brief, the plaintiffs will have 30 days after filing of the state’s brief to file their brief. The state then will have 30 days to file a reply, though this could be shortened depending on the oral argument schedule.
Then there is oral argument.
There are a lot of variables and the timing could be affected if the parties file their briefs, etc. early or if the Supreme Court on motion from the parties or of its own initiative expedites the schedule. But, for now, it is reasonable to assume briefing will not be finished until February at the very earliest - and it could be a bit later. Oral argument would be in February or March. And a decision from the high court likely wouldn’t come until late May or June 2018.
At that point, the Texas primary in March 2018 will have happened.
If it turns out that the Supreme Court ultimately agrees with the district court that some congressional and state house districts need to be redrawn, then the next question will be whether it is by that point too late in the election cycle for 2018. That will be a question for the district court. And even if the court decides at that juncture that then maps should be redrawn for 2018, it still will have to decide whether the Texas Legislature will be given first crack at doing so in a special session.
There are a number of ways all this could play out.
In 1996, Texas had special elections for certain congressional districts at the same time as the November election (yes, it was confusing). Something like that could happen again. Or courts could decide it is simply too late to redraw maps and have them in place by November 2018 - in which case, there could be Texas special elections in 2019. Or new maps could wait until the 2020 election.
Of course, the Supreme Court also could reverse the district court opinions in their entirety, meaning the current maps can remain in place for the balance of the decade.
Or it could send the case back to the district court with guidance for further proceedings.
In short, a lot of variations.
UPDATE: The plaintiffs have filed cross appeals of both the congressional and state house rulings. The Texas Democratic Party also has filed an appeal of earlier rulings dismissing its partisan gerrymandering claims. You can find the notices of appeal here.
While we wait to hear from the Supreme Court about whether remedial hearings will go forward, the plaintiffs have released a number of proposed remedial congressional maps. If you want to have a look, here they are:
The three-judge panel in the Texas redistricting case issued an opinion this afternoon finding that the 2013 Texas state house plan (Plan H358) violated the Constitution and Voting Rights Act and directing that portions of the map in Dallas, Tarrant, Nueces & Bell counties be redrawn. In an important finding that could result in Texas being placed back under preclearance coverage, the court also ruled that Texas had “purposefully maintained the intentional discrimination contained in Plan H283.”
The court’s decision gave the State of Texas three business days (until August 29) to advise the court whether the Texas Legislature would redraw the map in a special session. If, as anticipated, the state declines to hold a redistricting special session, the court scheduled a remedial hearing for September 6 in San Antonio.
Districts specifically affected by the court’s ruling are:
* HD 103, HD 104, and HD 105 in Dallas County,
* HD 90 and HD 93 in Tarrant County,
* HD 54 and HD 55 in Bell County, and
* HD 32 and HD 34 in Nieces County.
There could, of course, be collateral impact on other districts from the redrawing of those districts.
This afternoon, the State of Texas asked the U.S. Supreme Court to review Tuesday’s ruling on the 2013 congressional plan (Plan C235). Separately, the state also asked the three-judge panel to stay any remedial proceedings pending the appeal, a request that panel rejected a short while ago without waiting for a response from the plaintiffs.
In its appeal filing, Texas said that Tuesday’s ruling was appealable because it had the “practical effect” of enjoining the state from using the 2013 map. The panel’s order denying the stay appeared to take issue with that conclusion, noting that “[a]lthough the Court found violated in Plan C235, the Court has not yet enjoined its use for any upcoming elections.” The plaintiffs, likewise, are likely to contest both the propriety of an appeal at this juncture and the propriety of a stay.
In its stay request, Texas also told the court that it would not be holding a special session on redistricting in light of the appeal and because of concerns in light of what it said was “the Court’s relentless criticism of the 2013 Legislature’s ‘deliberative process’” that it would not have adequate time to “satisfy an undefined sufficient-effort standard, hold protracted hearings involving interest groups, and adopt new maps that will satisfy this Court by October 1.”
With the panel having denied its stay request, the next step is for the state to ask the Supreme Court to stay the case.
The three-judge panel in the Texas redistricting case has issued its decision on the 2013 congressional plan. The decision was 3-0. Copy of the decision available here.
More detailed analysis to come, but here’s a quick look at the highlights:
* TX-27 (Farenthold) and TX-35 (Doggett) need to be redrawn - but we knew that already because the court found earlier this year that the configuration of the districts in the 2011 plan was unconstitutional and the 2013 plan made no changes to those districts.
* No further changes need to be made to TX-23 (Hurd) in light of the changes made by the court in the interim plan that then became the 2013 plan. (It is possible there still could be some changes in the Bear County portions of TX-23 as a result of the dismantling of TX-35 but nothing is required).
* No new opportunity district needs to be created in either the Dallas-Fort Worth area. The court’s ruling finds that claims under section 2 of the Voting Rights Act fail because African-Americans and Latinos are not politically cohesive and that any intentional discrimination was adequately remedied by the interim plan/2013 plan as a result of the creation of TX-33 (Veasey).
* No new section 2 district needs to be created in Harris County because African-Americans and Latinos are not politically cohesive.
* BIG FINDING: The court held that the 2013 plan, like the 2011 plan, was intentionally discriminatory. This ruling will play an important role when it comes time for the court to consider whether to put Texas back under preclearance coverage under section 3 of the Voting Rights Act.
1. The court has given the state three business days (i.e., until Friday) to advise it of whether the Texas Legislature will redraw the map. If the state declines to redraw the map, the court has scheduled a remedial hearing that will start on September 5.
2. The court did not enjoin the state from using the 2013 plan in today’s order, so nothing is appealable yet. Once that happens, though, Texas will have to decide whether to appeal the case or not. It seems likely the state will appeal, especially given the findings of intentional discrimination. If there is an appeal, maps might not be final until December or January - or later. If for some reason, the state does not appeal, redrawn maps could be redrawn by September or October.
3. At some point to come, the panel also will rule on the 2013 state house plan. And some time this fall or winter, it likely will take up the question of section 3 bail in.
In the next few weeks, the three-judge panel in the Texas redistricting case is expected to rule on claims about Texas’ 2013 congressional and state house plans. That will - at long last - set in motion the redrawing of the maps - and set the stage for a trip to the Supreme Court this fall.
So how might things play out?
Let’s start with the ruling itself. We don’t know yet how the court will rule on questions like whether there was intentional discrimination in the drawing of the 2013 maps or whether an additional minority district needs to be created in the Dallas-Fort Worth area. But, because many of the problems the court found in the superseded 2011 maps carryover to the 2013 maps, we know that the court’s ruling - or an order following shortly after - will enjoin (i.e., block) the state from using the current maps. That’s because although the state has had several months to correct the defects the court found in the 2011 maps, it hasn’t done so, either in the regular session or, at least so far, in the special session.
Under federal law, an order issuing an injunction is immediately appealable, and, in this case, because the Texas case is before a three-judge panel, an appeal would go directly to the Supreme Court. Texas would have 60 days after issuance of the injunction to file an appeal, but it likely would do so sooner. (It’s also theoretically possible that Texas would decide not to appeal but resolution of the Israeli-Palestinian conflict is probably more likely.) Given the impending start of the 2018 election cycle, Texas likely will ask for expedited briefing and argument. If the court grants it, the case could be argued in November or December.
In the mean time, a ruling on the 2013 maps will start the remedial phase of the trial - i.e., the redrawing of the maps. At the end of the trial on the 2013 maps, the court asked that parties about their availability for a remedial hearing at the end of August or in September. In a filing, the parties provided the court with a series of dates, but the likeliest date for a remedial hearing at this juncture looks to be some time between September 5-8 (assuming, of course, that the court has ruled on the 2013 maps by then). The current expectation is that the remedial hearing would take about two days.
But there are a number of variables that could impact the timing.
First, the normal and strongly preferred practice under Supreme Court precedent is for a state to be given the first opportunity to draw a remedial map. It is reasonable, therefore, to expect that the court would give Texas at least a short period of time to indicate whether the governor would be calling a special session on redistricting (or adding redistricting to the call of an existing special session). If Texas does hold a special session and adopt new maps, the remedial hearing will focus on whether Texas adequately fixed problems in the two maps. If the court changes the state’s remedial maps, that too could be appealed.
It’s somewhat harder to say how Texas will respond. On the one hand, it is difficult to think members of Congress, in particular, would want to leave their fates completely in the hands of courts - and equally difficult to imagine that Texas Republicans or their consultants don’t already have draft maps in their back pockets ready to go. After all, the range of possible outcomes for Republicans from redrawn maps range from merely bad to Armageddon scenarios.
On the other hand, it’s not inconceivable that Texas might simply decline to draw new maps - essentially putting all its eggs in the SCOTUS basket. If that happens, the three-judge panel would proceed to draw remedial maps on its own. But, Texas could ask the three-judge panel to put a hold on that process on hold while the high court reviews the underlying ruling. If, as is likely, the panel denies the request, Texas could ask the Supreme Court to put a hold on the process. Sometimes the Supreme Court grants such requests, as it did recently in the Wisconsin partisan gerrymandering case, and sometimes it does not, as happened in a racial gerrymandering challenge to North Carolina’s congressional districts.
So, in short, Texans could end up with a new set of maps (drawn by the Texas Legislature or drawn by the court or drawn by the legislature and then tweaked/modified by the court). Or the whole process could be put on hold by the Supreme Court rules on whether there are underlying violations that require redrawing of the maps.
In any event, maps may not be final until early 2018. That would mean, at a minimum, that candidate filing deadlines for state house and congressional races will be moved (and potentially much angst for those thinking about running for those offices). Depending on how long it takes for the Supreme Court to rule, it is possible that the entire March 2018 Texas primary might have to be moved or, in the alternative, that the primary might be held in two parts - one part for congressional and state house races and one part for everything else).
At the court’s request, parties in the Texas redistricting case told the court in a filing that the all counsel for the plaintiffs would be available for a potential two-day remedial hearing September 5-8, September 12-14, and September 18-20 and that most counsel also would be available August 24 and August 29-31.
The filing also said that lawyers for the State of Texas would be available August 23-25, August 28-31, and September 5-8.