RAY SUAREZ: The Supreme Court today tossed out the Texas congressional map, creating chaos for the upcoming primary election and highlighting the difficulties of redrawing boundaries in states with diverse populations.
Four million new residents means Texas is adding four additional seats in Congress, and Democrats had high hopes of winning some of those seats as they attempt to reclaim the House.
A three-judge panel in San Antonio drew its own map, fearing the lines drawn by the Texas legislature wouldn’t win speedy approval from the Department of Justice, as required under the Voting Rights Act. Today, the Supreme Court unanimously found the San Antonio judges used the wrong standards to draw the temporary maps.
So, now what?
For a look at the legal and political implications of the decision, we’re joined by Richard Hasen, professor of law and political science at the University of California Irvine School Of Law, and Shira Toeplitz, a political reporter for Roll Call who has been closely following the Texas case.
Professor Hasen, what had Texas Republicans asked the Supreme Court to do in the first place? How did the case get there and what were they supposed to be doing, redrawing, making their own map?
RICHARD HASEN, University of California, Irvine, School of Law: What happened is that Texas, because of its history of discrimination, is one of the states that has to get federal approval before they can make any changes in their voting laws, including their changes in redistricting laws.
They’ve been trying to get their new redistricting maps approved through a federal court in Washington, D.C. But while that’s ongoing, another three-judge court, this one in Texas, is drawing some temporary maps. That has to be done because we need to know what maps to use following the new round of redistricting.
What the Supreme Court said today was that the standard that the three-judge Texas court used in drawing those maps was wrong. It’s now sent it back for redrawing under some new standards which are going to give a lot more deference to the Texas legislature’s own maps.
RAY SUAREZ: They have sent it back to the same court in Texas whose map that they just rejected?
RICHARD HASEN: Well, they sent it back because the three-judge court in Texas said they believed that they shouldn’t defer at all to Texas’ plan that was passed by the legislature; they had to start from scratch and draw lines.
And the Supreme Court said in a unanimous opinion that was a mistake. You need to start with the Texas-drawn maps, the ones that the legislature drew, and then make whatever changes are necessary to comply with what looks like it might be a violation of the Voting Rights Act or the Constitution.
So, now going back to the Texas court, the Texas court has to take a preview and think is it likely to find or is the D.C. court likely to find that there’s a voting rights violation or a constitutional violation which would require deviating from Texas’ maps?
RAY SUAREZ: Shira, the Democrats hope to make it a much more closely divided Congress the next time, or perhaps retake the speaker’s chair. Was this a setback for them?
SHIRA TOEPLITZ, Roll Call: This is a huge setback for the Democratic Party.
As you mentioned earlier, Texas is going to pick up four new House seats in the November elections because of population increase. Democrats need 25 seats to win back the House, so obviously four a huge chunk of that.
And under the court-drawn interim map, that was a very Democrat-friendly map. The way they drew those districts and where they added them included populations that tended to vote for Democrats. So by throwing this map out and then asking the court to base the new map, the new interim map on the original map passed by the Texas legislature, well, this is good for Republicans, because, as I’m sure you can imagine, there are a lot of Republicans in Texas.
It’s a state that consistently votes for Republicans. Well, it’s the same thing in the state legislature, Republican majorities in both houses, obviously Gov. Rick Perry, a Republican. And they drew a very Republican-friendly map and a very aggressive one at that when they passed it this summer.
RAY SUAREZ: Did they draw any seats of the new four that was friendly to minority aspirations, which is what the Voting Rights Act oversight is all about, after all?
SHIRA TOEPLITZ: There’s debate over — they kind of drew one, perhaps — or did they take an existing one and make it more friendly towards minorities? And that’s in South Texas.
Democrats will argue that the map that the Texas lawmakers passed last summer actually was retrogressive in terms of minority voting rights. Republicans will say that their map added one more minority seat by kind of fudging a line in South Texas.
RAY SUAREZ: Professor, is it usually done by now? After all, we’re in the third week in January. We don’t seem to have a lot of time, do we?
RICHARD HASEN: Well, it is late and we have already had the Texas primary has been postponed once. The big question is whether it is going to have to be postponed again, because now the Texas court’s going to have to have some hearings, draw some new lines.
And that itself could be appealed to the Supreme Court. So this is — it’s very late and it may get even later.
RAY SUAREZ: Was Texas already looking to get out from under the strictures? Are the states that are still under that pre-clearance requirement for their new maps sort of bridling under those requirements now almost 50 years later?
RICHARD HASEN: Well, yes, this is a big change.
In the last few years, we’ve seen a number of states, including the state of Florida recently, and Shelby County, Ala., a number of states that are subject to the Voting Rights Act saying it’s no longer constitutional. We should no longer have to get approval for every change we make in our voting rules.
And there actually was an argument yesterday in a federal court in Washington, D.C., arguing that the Voting Rights Act is no longer constitutional. It’s an issue the Supreme Court ducked in 2009, but it’s likely to go back to the Supreme Court maybe as early as next term.
RAY SUAREZ: Shira, is there time to do everything that Texas needs to do to run an election under a new map with four new districts in it?
SHIRA TOEPLITZ: Maybe. Maybe.
Everything would have to go right and they would have to do it very fast. What would have to happen is the San Antonio federal court, that three-judge panel that drew the original interim map would have to go back and draw a map within a matter of days.
Meanwhile, we have this ongoing pre-clearance trial in Washington, D.C., that has closing arguments scheduled for Feb. 3. And a decision there is expected in mid-February.
So, they’d have to kind of propose the maps, draw the maps. Meanwhile, the ongoing trial in D.C. is happening. And maybe they can do it that the way. In other words, it does not look very likely.
And it’s interesting, because as Mr. Hasen mentioned, they have already postponed it once from March, early March, to now April 3. And they might have to do it again. It’s looking more and more likely.
RAY SUAREZ: What are the candidates who hope to run for Congress doing in the meanwhile?
SHIRA TOEPLITZ: Well, it’s been kind of interesting to watch the candidate filings. They did have a filing period. Candidates did announce they were going to run for office. They paid their filing fees.
And they then opened — they closed it again when once map passed, and they opened again. It’s chaos, frankly. And it’s hard for a lot of candidates. You hear a lot of stories like, oh, I was going to run here, but I can’t. Now I have to not run for office.
I mean, it does in a way weed out the people who really want to run for Congress. If you jump through all of these hoops, you really have to want to be a member of the House of Representatives to go through this over and over again.
Right now, members of — candidates who are filing to run for the House don’t know where their districts are. They don’t where — even which number to put on their application when they file for office.
RAY SUAREZ: In today’s ruling, Professor, the Supreme Court asked for a new map by Feb. 1. Does that seem like a reasonable date?
RICHARD HASEN: Well, I agree with Shira. It’s going to be very tough.
And I really believe that, if the court goes too far one way or the other, it is likely to see another appeal go up to the Supreme Court. I don’t know how much appetite the Supreme Court will have for a second emergency kind of hearing, but this is far from over.
And I’ve already heard from a number of Democrats and minority plaintiffs in Texas who think they are going to have a better shot before this new — before the Texas court under the new standards than many people are giving them credit for.
RAY SUAREZ: Professor Hasen, Shira Toeplitz, thank you both.
SHIRA TOEPLITZ: Thank you.
RICHARD HASEN: Thank you.