Supreme Court Hears Oral Argument in 7-Year-Long Texas Redistricting Case

The Supreme Court heard oral argument today in Abbott v. Perez, two consolidated racial redistricting cases out of Texas.  This is a long-running case:

“We’re seven years into the case after three trials and two appeals to this court,” said Texas Solicitor General Scott A. Keller.

At the threshold, there is a jurisdictional question about whether the matter is proper for the Court to hear:

In the latest incarnation of the case, a three-judge panel in Texas last summer said two congressional districts and a handful of legislative districts were unconstitutional, and called on the governor to convene the legislature to draw new lines.

Before that could happen, Texas went to the Supreme Court. In September, the court on a 5-to-4 vote put that order on hold until it could hear the case. 

But not waiting for the process to play out truncated things at a critical time, the liberal justices said Tuesday.

On the merits, the Court appeared divided along liberal and conservative lines during oral argument.  The conservative justices seemed to find persuasive that the Texas legislature adopted interim maps drawn by the district court to be used in the 2012 election:

Chief Justice Roberts said Texas has a “strong argument” that the new maps were adopted in large part to bring an end to long-running litigation over whether the maps were discriminatory. 

“It does seem to me that at the very least .... that ought to give them some presumption of good faith moving forward, which is significant to the determination of their intent to discriminate,” Roberts added.

This is a somewhat more "traditional" redistricting case, in contrast to the two partisan redistricting claims that the Court has already heard this term in Gill v. Whitford and Benisek v. Lamone.  The jurisdictional question and complicated procedural history of the two Texas cases make them distinct from many redistricting cases, but they still teach the same lesson: clarity is needed in the legal rules governing redistricting to avoid states, legislators, and individuals being involved in lengthy litigation where judges attempt to apply unclear standards to complex facts with widely varying results. If courts are going to decide redistricting cases, there must be clear, easily applicable standards, not arbitrary decisions depending on which judicial panel is selected to hear a particular case.

Democrats Are Using Courts To Take Redistricting Power Away From Legislatures

RNLA Executive Director Michael Thielen wrote today in The Daily Caller about how Democrats are trying - successfully - to seize political control by using the courts to control redistricting:

Democrats and their liberal allies, not satisfied with their results at the ballot box and in the legislatures, have turned to the courts to enact their radical agenda by fiat, without the input of the people as intended in our system of constitutional government.

Courts are increasingly deciding redistricting cases and enacting entirely new maps by judicial fiat:

Commonly called redistricting (when done in a way you like) or gerrymandering (when done in a way you dislike), states have established procedures whereby the state legislature or a special redistricting commission determines the districts for federal congressional and state legislative races after each decennial census. This has an enormous practical impact on elections, as it not only divides voters into constituencies but also decides which candidates may represent which group of voters. 

Redistricting is, at best, a confusing area of law. The guidelines provided in past Supreme Court cases are vague and applied inconsistently by the courts. And the reasons for this are obvious. Unlike traditional “law,” which involves applying static statutes, case law, and regulations to a specific fact pattern, redistricting is an inherently political act. It is difficult for courts to assess the political judgments of a state legislature or commission and provide clear guidelines for adjudicating future political decisions.

The recent, overt seizure of power by the Democrat-controlled Pennsylvania Supreme Court to enact a map drawn by its selected expert provides is the starkest example of the Democrats' and their liberal allies' use of the courts to achieve a result they could not obtain through the ballot box or the people's representatives:

And that brings us back to the beginning. We are in a crisis of democracy over political control. Ultimate political power and accountability ultimately resides with the people, who exercise control through their elected representatives. Yet some courts, when presented with the opportunity from liberal activists’ lawsuits to undo and ignore the will of the people, jump at the chance to turn over political power to unelected, unaccountable experts.

The U.S. Supreme Court has three redistricting cases pending before it this term, which could dramatically change the law on redistricting. We hope that the Court provides some clear guidelines in this important area before the post-2020 redistricting so that the Democrats cannot use litigation to seize control of the district lines.

Redistricting Litigation Update

The past few weeks have been very busy for redistricting litigation.  Here is the status of some of the current cases:

• The Supreme Court agreed to hear consolidated Voting Rights Act and racial gerrymandering challenges to the state legislative and congressional districts in Texas (Abbott v. Perez), setting aside questions of jurisdiction until after briefing on the merits.  The court declined to hear a partisan gerrymandering claim from Texas for lack of jurisdiction (Texas Democratic Party v. Abbott).

• A three-judge district court found the re-drawn North Carolina congressional districts to be an impermissible partisan gerrymander and, in a lengthy 191-page opinion, ordered the map re-drawn, again, by January 24 (Common Cause v. Rucho).  This is the first time a court invalidated a congressional map on partisan gerrymandering grounds.  North Carolina appealed to the Supreme Court for a stay, and the original three-judge panel has refused to delay its order.

• A three-judge court in Pennsylvania dismissed a partisan gerrymandering claim against Pennsylvania’s congressional districts (Agre v. Wolf). 

• The Supreme Court of Pennsylvania heard oral arguments today in a separate challenge to the Pennsylvania map under the state Constitution.  A Commonwealth Court judge who reviewed the evidence in the case found that the congressional district lines were not unconstitutionally gerrymandered, but Pennsylvania’s Supreme Court leans heavily Democratic.

The consolidated Texas cases now join two partisan gerrymandering claims already pending before the Supreme Court this term, Gill v. Whitford out of Wisconsin (argued in October) and Benisek v. Lamone out of Maryland (oral argument date not scheduled yet).  And there are also pending redistricting cases in Georgia, Michigan, and Virginia. 

With all of this pending litigation, the rules governing redistricting are far from settled.  The maps currently being litigated are ones drawn after the 2010 census, over 7 years old at this point.  And in some cases, such as North Carolina’s congressional districts, the map currently being litigated is one that was re-drawn after the last round of post-2010 litigation. 

As we look forward to the 2020 census and the next round of redistricting, Democrats are making redistricting strategy and litigation, as well as winning majorities in state legislatures, a priority, including attracting the focus of Barack Obama and Eric Holder.  Republicans are just beginning to counter the Democrats’ efforts.  But at this rate, legislatures might not even know what the governing rules are when it is time to draw the new maps in 2021, and even if the rules are set by 2021, Democrats have shown how willing they are to change the rules after the fact through litigation. 

Stay tuned to this blog and RNLA’s Twitter feed for updates on these cases.