In Racial Gerrymandering Case, Supreme Court Justices Express Sympathy for Both Sides
By Kevin Diaz
Lawyers for Texas and a broad coalition of African-American and Latino rights groups clashed Tuesday before the U.S. Supreme Court in a protracted redistricting dispute alleging that the state's Republican lawmakers intentionally drew their latest political maps to marginalize minority voters.
But one of the main points of contention in the 70 minute hearing was whether the case belongs before the Supreme Court at all, with lawyers for the minority groups arguing to let a panel of federal judges in Texas first decide whether to change political boundaries that they invalidated in 2017.
Justice Sonia Sotomayor, one of the leading liberals on the bench, peppered Texas Solicitor General Scott Keller about the timing of the state's appeal to the Supreme Court, which the minority groups say was intended to short-circuit the lower court's move to have the Legislature draw new political maps or have the courts hold new redistricting hearings.
"By not waiting for the remedy in this case, we are not in a position to be fully informed," Sotomayor said. "Aren't we obligated to look at the full picture?"
Keller argued that the high court should uphold the current maps, which the Legislature adopted in 2013 following the contours of an earlier interim court redistricting plan put in place for the 2012 elections.
"Adopting a court-ordered remedial plan is evidence that the Legislature acted in good faith," Keller said. "This is not a case of the Legislature trying to pull a fast one."
Some of the conservatives on the court, including Chief Justice John Roberts, expressed some sympathy for the state's position.
"It does seem to me that at the very least -- and I understand this to be the point on the other side -- that ought to give them some presumption of good faith moving forward, which is significant on the determination of their intent to discriminate," Roberts said.
Roberts also noted, however, that the state was relying on a court plan that was "put in quickly" and not "comprehensive."
The arguments brought to a head long simmering tensions about political gerrymandering in nearly a dozen states across the nation, accentuated by Texas' long history of disputes involving allegations of racial discrimination in the makeup of its political boundaries.
The Supreme Court clash is the latest in a seven-year battle that will determine if Texas has to redraw its congressional and state house maps for future elections. It could also decide if Texas will again have to submit to federal "preclearance" requirements in future redistricting and election cases.
The groups bringing the challenge, including the Texas NAACP and Mexican American Legislative Caucus (MALC) allege that even though most of the population growth in Texas between 2000 and 2010 was in communities of color, minorities lost representation in the redistricting plans that followed the 2010 census.
Two lower courts have found that the discrimination was intentional, thus violating the Fourteenth Amendment and Section 2 of the 1965 Voting Rights Act.
Although the case has been moving forward since 2011, the state adopted new maps in 2013 that Texas argues followed the lower courts' mandates. In their appeal to the Supreme Court, lawyers representing Texas have argued their most recently-crafted maps must be upheld as constitutional insofar as they are similar to the interim maps ordered into effect by the lower courts in 2012.
The civil rights groups counter that the new maps left unchanged many of the challenged state and congressional districts that the lower courts found unconstitutional.
"Those interim maps had baked in many of the infirmities of the 2011 maps," said MALC chairman and State Rep. Rafael Anchia. "The Texas Legislature has had 2013, 2015 and 2017 sessions to try to remedy this problem. Regrettably the state, led by the attorney general, has continued to want to fight this in court, instead of trying to give Texas voters fair maps."
Throughout the litigation, Anchia noted that the lower courts have made 10 findings of intentional discrimination against the State of Texas by both Republican and Democratic-appointed judges.
"While redistricting is what we are dealing with... there's an entire environment of intentional discrimination that we've seen in the State of Texas," said Anchia, who attended the court session.
The minority groups also accuse the state of appealing to the Supreme Court prematurely before the lower courts could fashion a remedy, possibly by drawing new lines for the 2018 midterm elections.
"The work of the district courts has yet to be completed," said MALC attorney Jose Garza.
That remains one of the central points of contention in the Supreme Court review. Some legal analysts say that if Texas prevails in its appeal from the lower court proceedings, it could either slow or short-circuit them altogether, protecting the current maps through the 2020 elections.
For that reason, the minority groups argued Tuesday that the Supreme Court doesn't yet have jurisdiction over the case and should return it to the lower courts. Texas's lawyers argued that the lower courts' rulings finding discrimination and ordering a remedy are ripe for appeal.
As it is, Anchia said, the protracted litigation has meant that any resolution will likely come only shortly before yet another decennial census, meaning "there will be millions and millions of votes cast under illegal maps."
Lawyers for the minority groups say theirs is a grievance with a long history. Every Texas redistricting round since 1970 has come under challenge on racial grounds.
"It's been a long road," said Texas NAACP lawyer Robert Notzon, a co-counsel on the case. "What you need to understand is the Texas, for five decades, since the passage of the Voting Rights Act, has consistently and in an unbroken pattern, been discriminating against its minority population," he said. "It just needs to stop."
Although the Texas redistricting battle has not challenged the right of lawmakers to determine the political boundaries of their states, it illustrates a broader nationwide frustration with a process that has increasingly come under fire.
"The Texas case of gerrymandering is a perfect example of why politicians should no longer be allowed to draw political maps," said U.S. Rep. Joaquin Castro, a San Antonio Democrat who supports the redistricting challenge. "Gerrymandering is probably the most powerful tool in the kit of voter disenfranchisement."
Hopes for reform has risen this year as the high court has agreed to take up cases from Maryland, Wisconsin and other states that have come under challenge for partisan -- if not racial -- gerrymandering. Some reformers have pressed for bipartisan or independent commissions to redraw their states political boundaries.
One of the congressional districts under challenge in Texas is District 27, which was recently vacated by Corpus Christi Republican Blake Farenthold, who resigned amid a flurry of sexual harassment allegations.
While the high court reviews the district boundaries, Gov. Greg Abbott has sought emergency powers for an expedited special election in the Republican-leaning district.
The other is Congressional District 35, a heavily-Hispanic stretch running from Austin to San Antonio represented by Democrat Lloyd Doggett.
In addition to the two congressional districts, the case involves nine Texas House seats where a federal court ruled lawmakers diluted the strength of minority voters. Five of those districts are in the Dallas-Fort Worth area. Bell County, south of Waco, and Corpus Christi's Nueces County each have two districts that could be redrawn pending the outcome of the case.
With a Supreme Court ruling unlikely much before the end of June, along with the possibility of further proceedings by the lower courts, the challengers to Texas' political maps say time is running out on the prospect of any resolution in time for the Nov. 6 midterm elections.
Among the high court's options are to either take jurisdiction over the case and rule on its various procedural and substantive questions, or return the case to a district court in Texas for further review.
In that case, any new maps imposed at the lower court level could be appealed anew to the high court. "And we expect they are likely to given how intransigent they have been so far," said Susan Karlan, a Stanford Law School Supreme Court Litigation Clinic attorney representing the minority groups.
No matter what the justices decide, Garza said, "the door is closing pretty fast."
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