The Supreme Court should (and indeed must) stay out of the battle over Texas redistricting right now. That was the message in a 38-page filing submitted to the court today by the individuals and groups that had challenged the federal congressional redistricting maps adopted by the Texas legislature in 2013. Last month a three-judge federal district court struck down two districts in that plan, ruling that one had intentionally diluted the votes of Hispanic residents while the other focused too heavily on race. Texas officials went to the Supreme Court on August 25, asking Justice Samuel Alito (who handles emergency appeals from the geographic area that includes Texas) to block the lower court’s decision, which had instructed the state to either call a special session of the legislature to draw new maps or return to court today with experts and new maps to propose. Alito put the district court’s order on hold temporarily and directed the challengers to respond today.
The challengers told the justices that the Supreme Court lacks the power to review the state’s request because there is nothing to put on hold: The lower court has neither blocked the state’s current redistricting plan nor entered any orders to remedy the violations it found. Instead, the challengers emphasized, the lower court simply directed the two sides to show up for a hearing today to come up with a new plan. If the lower court had held the hearing and then entered an order, the challengers explained, Texas could have asked the Supreme Court to step in – but it cannot do so now.
The challengers also dispute any suggestion that if the justices do not intervene now, the district court might impose its own map, which the state will not have time to appeal before the October 1 deadline by which the congressional maps must be in place for next year’s elections. Any “deadline” is purely self-imposed, they say: “This alleged ‘deadline’ is simply the date that Texas claims is required to permit local officials two months’ time to coordinate with third-party vendors to print and mail voter registration certificate cards.” And in any event, they add, there is no reason to believe that the court would both decide to review the dispute and reverse the lower court’s judgment – a key criterion in deciding whether to put a lower court’s ruling on hold. The challengers conclude by pleading with the court not to “countenance Texas’s attempts to introduce further delay and multiply the proceedings in this Court in an attempt to run out the clock.”
There is no specific deadline for Alito (or the rest of the court, if he chooses to refer the dispute to them) to act, although a ruling could come quickly. Meanwhile, the challengers’ response in another Texas redistricting battle – over the redistricting map for the Texas House of Representatives – is due tomorrow.
This post was later published at SCOTUSblog.com.
