Lawyers representing the state of Texas on Tuesday faced sharp questions from liberal Supreme Court justices on whether they should be wading into a debate over some of the state’s congressional and state legislative boundaries.
The justices considered the redistricting case out of Texas after a district court there struck down two congressional districts, the 27th and 35th, and Texas House districts in four counties after deciding they were drawn to discriminate on the basis of race.
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A key question in the case is whether the Supreme Court has jurisdiction over the appeals from the state, as the district court never blocked the congressional and state maps from taking effect and never issued a final order providing a remedy for violations it identified.
Justice Stephen Breyer said the “problem” in the case is that there is no judgment or request for injunction that has been granted or denied.
“What is the order, the sentence, the piece of paper that says injunction denied or says injunction granted from which there is an appeal?” Breyer asked the state.
Breyer and Justices Elena Kagan and Sonia Sotomayor seemed worried that if the Supreme Court decided it did have jurisdiction, that would invite a flood of other redistricting cases before injunctions or final orders from a district court have been issued.
The case before the justices Tuesday has been ongoing for nearly a decade, starting after the GOP-led legislature in Texas adopted new congressional and state House maps in 2011.
Those maps were subsequently challenged in court, where plaintiffs said parts of the plan violated a provision of the Voting Rights Act and the 14th Amendment. A three-judge district court agreed the maps had been drawn to intentionally discriminate based on race.
The court ordered remedial maps to be drawn, which it did in 2012, but noted “its analysis has been expedited and curtailed and … it had been able to make only preliminary conclusions that might be revised upon full analysis.”
The court-ordered interim maps kept some of the same lines drawn by state lawmakers in 2011 for several congressional districts and state House districts, and redrew others. The Texas state legislature then decided to adopt the court-imposed map and voted to do so in 2013.
But a district court, again examining the legality of the redistricting plan enacted by the state legislature in 2013, invalidated two congressional districts and state House districts in four counties in 2017, citing that “specific portions” of the 2011 maps deemed unconstitutional or to have discriminated based on race “continue unchanged.”
The court then asked the Texas attorney general to tell the court within three days whether the state legislature would convene to draw new maps. If it did not, the district court said it would hold hearings to “consider remedial plans.”
Texas argues the legislature adopted the same maps that were drawn and approved by the district court to meet all constitutional and statutory requirements, and said the boundaries should therefore stand. The Trump administration agrees with Texas.
“Courts should operate from a strong presumption that the state legislature’s adoption of the judicially approved remedy was due to good faith compliance efforts rather than sinister motives,” Solicitor General Noel Francisco said in briefs filed with the court.
But the challengers in the case disagree, and say the same districts at issue were drawn by the legislature in 2011, included in the court-imposed map in 2012, and then approved by the legislature in 2013. Those districts, they said in court filings, were “infected by purposeful racial discrimination.”
By repealing the 2011 redistricting plan and subsequently enacting the court-imposed plan two years later, the challengers accused the state of attempting to “wipe out the evidentiary significance of any findings of discriminatory intent in the initial design of the districts because it could then argue that that evidence applied only to a plan that no longer existed.”
Chief Justice John Roberts seemed sympathetic to the state’s argument, saying it “seems a strong argument… 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.’”
“It does seem to me that at the very least that ought to give them some presumption of good faith moving forward,” he said.
Roberts asked that if one is the attorney general or the Texas state legislature “and you want to take your best shot at a plan that will be accepted by the district court, wouldn’t you take the plan that the district court drafted?”
Roberts said the “evil intent” the challengers referred to about racial discrimination “comes from adopting the plan that the district court adopted and let the elections go forward for two cycles.”
The redistricting case out of Texas is the third involving voting boundaries the justices have heard this term.
Two others — one involving a congressional district in Maryland and the second involving the state legislative map in Wisconsin — deal with partisan gerrymandering.
A decision from the justices is expected in June.
