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Supreme Court Hears Arguments on Texas Redistricting, Environmental Rules

January 9, 2012 at 12:00 AM EST
The Supreme Court heard arguments Monday involving a redistricting dispute in Texas. Jeffrey Brown discusses the case's broad implications for the future political landscape of the state -- and potentially the entire nation -- with The National Law Journal's Marcia Coyle.
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JEFFREY BROWN: And now to a politically sensitive legal case.

Texas doesn’t hold its primary until April, but well before then, the U.S. Supreme Court is being asked to settle a redistricting dispute with broad implications for the makeup of the state’s and possibly the nation’s future political landscape.

Texas gained four new congressional seats due to an explosion of political growth in the past decade, more than half of it within the Hispanic community. The state legislature drew up a new map of voting districts, but it’s being challenged by minority rights groups as unrepresentative.

In the meantime, a federal court has drafted its own redistricting plan, and it is being challenged by the state. And all of this was presented today in arguments before the Supreme Court.

Outside the court, both sides weighed in.

NINA PERALES, Mexican American Legal Defense and Education Fund: Texas gained four new congressional seats because of Latino population growth. But the redistricting plans enacted by Texas created no new opportunities for Latino voters in the state.

Instead of embracing the Latino community in Texas, its leadership has slammed the door in our face. The Voting Rights Act protects minority voters from exactly the kind of discrimination that Texas hopes to get away with today.

GREG ABBOTT (R), Texas attorney general: What the legislature does and is entitled to do is to draw districts in the state of Texas that complies with the Voting Rights Act, to the extent possible, protects incumbents.

And we believe that what the state of Texas did in passing the redistricting maps fully complies with the Voting Rights Act and ensures a new record number of Hispanics who are elected to office as Republicans, with the hope and opportunity they’ll be able to come back and continue to serve as Republicans in the state legislature.

JEFFREY BROWN: The justices also heard arguments today in a controversial land rights and environmental regulation case.

Marcia Coyle of The National Law Journal was of course in the courtroom for both sets of arguments, and joins us now.

Welcome back.

MARCIA COYLE, The National Law Journal: Thank you, Jeff.

JEFFREY BROWN: Let’s start with the Texas case.

One of the complicating factors here is that Texas is a state that has to get any changes in its voting processes approve under the Voting Rights Act. Give us a little more background.

MARCIA COYLE: That’s correct. And that’s because Texas has a history of racial discrimination in its voting practices.

It’s called so-called covered jurisdiction under the Voting Rights Act. There are nine states that are covered jurisdictions with similar histories. And most of them are in the South, but there are counties and cities in an additional seven states, some in the Northeast, some in the West, that are also coverage jurisdictions.

Texas had two options here when it drafted a redistricting plan after the 2010 census. It could go to the United States attorney general to have the plan approved, the quickest way. Or it could to go to the federal district court in Washington, where it actually went and is still in the process of having that court review the plan.

JEFFREY BROWN: All right, so I laid out some of the — some of what’s happened here. And you just gave us some more. What is the legal dispute that is before the court?

MARCIA COYLE: The fight in the court today is really over an interim redistricting plan that was crafted by a federal court in San Antonio, Texas.

After Texas asked the district court in Washington for approval of its plan, about the same time, eight organizations, individuals, mostly civil rights and minority groups, challenged the Texas plan in San Antonio, Texas, federal district court as violating the Voting Rights Act as well.

As the time came closer to the primary election, the district court in Washington knew that it wasn’t going to complete its process in time, so it told the San Antonio court, prepare an interim plan. It did prepare that plan, and that was what was fought over in the Supreme Court today.

Texas, represented by former Solicitor General Paul Clement, argues that the San Antonio court did not give deference to the new Texas plan in drafting its interim plan. Instead, it pretty much gave a plan that responded to all of the charges being made in the lawsuits before it.

JEFFREY BROWN: In the background is this larger question, a constitutional question about the Voting Rights Act itself, right?

MARCIA COYLE: Well, in 2009, the Supreme Court cast considerable uncertainty about the constitutionality of Section 5, the pre-clearance provision that Texas is under, and it didn’t address it head on in that 2009 case.

It’s in the background of this case, but today the chief justice made it clear that it wasn’t directly coming up in this case.

JEFFREY BROWN: States want to get out from under it.

MARCIA COYLE: Oh, absolutely. They feel circumstances have changed. I mean, some of these pre-clearance requirements go all the way back to the late 1960s.

JEFFREY BROWN: Now, I said there were big stakes here, big implications. Explain it. For those who don’t live in Texas, what’s at stake here?

MARCIA COYLE: Well, I think, first of all, there are very important political implications. As you reported, Texas gained four new House seats.

And how that plan ultimately comes out may have a bearing on who controls the U.S. House of Representatives after the general election. And secondly, it’s the Voting Rights Act, probably the most successful civil rights statute in our history. Whatever the court says about the Voting Rights Act and the role of federal courts in interpreting it and applying it is going to be very important to all of us, because we are in the midst of some very dramatic changing demographics in this country.

JEFFREY BROWN: And you told me earlier today, this was a technical argument at the court today.

(LAUGHTER)

JEFFREY BROWN: You’re shaking your head. One of those, huh?

MARCIA COYLE: It’s a very complicated process, the redistricting and the approval of redistricting plans. So it was.

And I think the justices feel in a sense they’re between a rock and a hard place. The primary election was postponed until April, contingent on a usable plan being in place by Feb. 1. And the justices seemed to make it clear they didn’t see how this was possible by Feb. 1.

JEFFREY BROWN: All right, so we will watch that as part of the political campaign that we’re watching over the next month.

MARCIA COYLE: Yes.

JEFFREY BROWN: All right. A couple of minutes, and I do want to bring up this other case because this was a very controversial environmental regulation case, Sackett vs. EPA.

MARCIA COYLE: Right. The Sacketts bought some land in Idaho near Priest Lake in Idaho. They wanted to build a home.

They prepared back in 2007, I believe, to build that home by filling in the lot. EPA issued what they call a compliance order saying, wait a minute. This is wetland property. You can’t do this. You have to return it to its natural state or you will face penalties of up to $37,500 per day until you comply. The Sacketts didn’t believe that their property was wetland, but they had very few options available.

They are in the Supreme Court today arguing that they have a right to go to court to challenge that compliance order. But the lower court…

JEFFREY BROWN: Rather than just wait to go back to the EPA.

MARCIA COYLE: Exactly.

Lower courts, including in the Sacketts’ case, have held that there is no pre-enforcement judicial review. You have to wait until EPA takes the next step, which is an enforcement action against you.

JEFFREY BROWN: So why did it get to the Supreme Court then? Somebody felt otherwise, right?

MARCIA COYLE: That’s right. Well, actually, the Sacketts lost in the lower court, so they appealed to the Supreme Court. And I would say that the justices were very hostile, it appeared today, to the EPA.

The government’s lawyer — you know you’re going to have a bad day if one of the justices says to you, as Justice Alito did, if you presented the facts of this case to the ordinary homeowner, wouldn’t that homeowner say, this doesn’t happen in the United States?

And the feeling is there has to be some way that the homeowner can challenge EPA’s claim that it’s a wetland before the penalties start accruing.

JEFFREY BROWN: And, briefly, this one also has implications for well beyond its case, beyond environmental regulations.

MARCIA COYLE: Sure. Yes, it does. Yes, it does, because not only EPA, but other federal agencies issue these compliance orders.

And their purpose generally is to allow an agency to act swiftly when there’s a threat of some kind. And if the court imposes or says that there is judicial review, the agencies feel that they are going to be hauled into court in thousands of cases, challenges to these orders, and they won’t be able to respond swiftly.

JEFFREY BROWN: All right, Marcia Coyle of “The National Law Journal,” as always, thank you.

MARCIA COYLE: My pleasure, Jeff.