Texas Attorney General Greg Abbott (R) successfully asked the Supreme Court to stay that court-drawn map, charging the San Antonio court overstepped its legal authority by overhauling the new map during an ongoing preclearance trial.
The Supreme Court will hear oral arguments today on Abbott’s case, but next Tuesday the District of Columbia’s District Court will begin its preclearance trial.
The dual trials put the map in somewhat unprecedented legal limbo. The Supreme Court is unpredictable, but interviews with redistricting and legal experts yielded several possible outcomes:
• The high court could stop the implementation of any map until the D.C. District Court finishes its preclearance trial in early or mid-February. Attorneys agree this would be the simplest ruling.
• After hearing arguments from both sides, the court could defer to the San Antonio court’s interim map. Democrats hope this happens, but attorneys say it’s unlikely the high court would take up the case unless they had a problem with the map or the San Antonio court’s actions.
• The court could ask the three judge panel in San Antonio to redraw certain parts of the map. It could order minor tweaks to fix specific boundaries or even the population deviation in each district.
• The court could use this case as an opportunity to rule directly on the constitutionality of Section 5 of the Voting Rights Act. But most voting rights attorneys agree this is out of the scope of the trial.
• The high court could ask the San Antonio court to defer to the map the state Legislature passed last summer — even though it has not been precleared — for the 2012 cycle.
It might seem like a minor procedural ruling, but Democrats and minority activists loathe and fear this outcome because they say it would effectively “gut” Section 5 of the Voting Rights Act. This ruling would set a precedent for courts to defer to passed maps if the state runs out of time for the courts to preclear or draw other maps.
“It doesn’t necessarily take the legs out from Section 5, but it certainly gives states the tools to slow down if they can just drag their feet,” Gaskins said. “This [case] seems like it’s teed up more for one of those procedural little pieces. It’s like death by 1,000 cuts.”
The Supreme Court tended to sidestep major rulings on election law in recent redistricting cases. Although attorneys caution that any predictions, even based on precedent, are highly speculative.
Nonetheless, attorneys look for some clues from the most recent Supreme Court ruling on preclearance, Northwest Austin Municipal Utility District Number One vs. Holder. In that 2009 case, the Supreme Court ruled, 8-1, that the municipality could “bail out” of its Section 5 preclearance requirement.
Justice Clarence Thomas dissented, calling Section 5 unconstitutional. But other justices, including Antonin Scalia and John Roberts, expressed concern about Section 5 in their oral arguments. Attorneys presume the trio of left-leaning justices on the court — Elena Kagen, Sonia Sotomayor and Ruth Bader Ginsburg — would probably oppose a ruling that would weaken the Voting Rights Act. That leaves Justice Anthony Kennedy as the pivotal swing vote.