Sunday, December 11, 2011

Supreme Suppression

A case just as potentially important as the health care reform's individual mandate provision will now go before the Supreme Court in January:  the question of Texas's congressional redistricting.

The Supreme Court Friday night blocked a redistricting plan for Texas drawn by a panel of federal judges, putting the justices in the middle of a partisan battle over how the state’s electoral maps should change to recognize the state’s burgeoning minority population.

Texas had objected to the judicially drawn maps, which analysts said would increase chances for Democrats and minorities, and favored maps drawn by the Republican-dominated legislature. Attorney General Greg Abbott (R) requested the Supreme Court’s intervention; the justices will hear arguments Jan. 9.

Candidates already have begun to register to run under the districts drawn by the panel of federal judges in San Antonio, and it appears likely the state’s March primaries now will be delayed.
The plans drawn by the legislature do not have the approval needed by several southern states, including Texas, that are covered by a part of the Voting Rights Act that requires federal “pre-clearance” of any electoral changes that could affect minority political power.

A federal court in Washington, meanwhile, has denied Texas’ initial request for approval, and will hold a trial on claims that the legislature’s plan dilutes minority political power. The Supreme Court’s brief order did not appear to affect that review.

Earlier, the panel of federal judges was charged with drawing new maps so that Texas elections could proceed on time. The qualifying period has already begun.

And now we have a problem.  The conservative Roberts Court, for all its talk on leaving individual state issues to states, has stepped in on a case that may end up determining if the Democrats can win enough seats to take back the House, or if millions of Texas Latinos have a chance at fair representation at all.

The original Texas redistricting plan was drawn up by the Republicans in the state legislature.  It was a disaster, a plan that failed to pass Justice Department muster so badly that the panel of federal judges were required by law to create a non-partisan redistricting plan.

Now the Roberts Court has stepped in.  Lyle Denniston of SCOTUSblog (emphasis mine):

Stay applications such as the ones that put these cases before the Court are usually only for temporary remedies, and, most often, seek simply to maintain the status quo while the underlying decision at issue is reviewed.   The Court, this time, converted the applications into what it calls “jurisdictional statements,” which is the label it uses for cases that are appealed directly to the Justices from a three-judge District Court.   Federal law provides that challenges to redistricting cases are to be heard initially by three-judge District Courts, with direct appeals to the Supreme Court, bypassing the usual transit through a federal Circuit Court of Appeals.

By granting review, the Court, of course, gave no indication of how it would rule on the constitutionality of the District Court’s interim plans.   But the Court appeared to have taken seriously and heard perhaps somewhat sympathetically the Texas lawyers’ argument that a 1982 Supreme Court precedent — Upham, et al., v. Seamon, et al. — strictly limits the power of a federal court to craft its own interim redistricting plan that deviates greatly from one drafted by a state legislature.   In the San Antonio District Court, the dissenting judge in the 2-1 rulings at issue had argued that the Upham decision barred a court-ordered map that strayed so far from what the state legislature had drawn.

Because the three cases reached the Justices as stay applications, they did not spell out specifically the legal or constitutional questions being laid before the Court.  But it does appear, at least at this stage, that the Court will only be ruling on the validity of the San Antonio court’s decision to draw up interim maps of its own.  No lower court has yet ruled on the underlying question of whether any of the districts — for the legislature or for the House delegation — actually violate federal law or the Constitution.

It's those precedents that Texas Republicans are hoping to use in order to get their own plan through, and as many as 4 or 5 Democratic seats could be at stake here.  That's certainly enough to make a difference in who controls the House after November's elections.  At stake is who has the authority here, the states to draw their own redistricting, or the federal government, since these are congressional districts that can potentially affect the makeup and political power of the Congress itself.

In addition to that, the entire primary process in Texas is now a huge question mark.  SCOTUS won't even hear the case for another month, and Texas primaries are in March.  Those primaries aren't going to happen on time now.

Judicial activism?  Possibly.  But for such an important event, SCOTUS kicks down the door and then says "We'll hear this in a month"?  Really?

That's just bad form.

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