The Supreme Court hears oral arguments Tuesday in a case that could not only require Texas to redraw its congressional districts, but give states a way to defend against claims of gerrymandering.
This is the third case the justices will hear this term about how states draw legislative maps to gain a political advantage. Cases from Wisconsin and Maryland focus on whether those maps can be too partisan. The Texas case is a more traditional challenge to how state lawmakers draw the lines using voter data.
The long legal saga over the Lone Star State’s congressional and statehouse maps stretches back to what state lawmakers decided right after the 2010 census. And the outcome now could influence how states draw new congressional maps after the census in 2020.
“The states always watch these cases very carefully because they’re trying to see how much they can get away with in redistricting,” said Danielle Lang, an attorney with the nonpartisan Campaign Legal Center who filed a brief in the case.
Texas has challenged an August ruling by a panel of three district court judges that ordered a quick redrawing of the current congressional map, put in place in 2013. The panel found it unconstitutional because state lawmakers approved a map with intentional vote dilution in the 27th District and racial gerrymandering in the 35th District.
Watch: The Many Ways to Draw a Gerrymander
The 27th District, located in Central Texas and along the Gulf Coast, was recently vacated by Republican Rep. Blake Farenthold. The 35th District, including parts of Austin and downtown San Antonio, is held by Democratic Rep. Lloyd Doggett.
The Supreme Court put the lower court order on hold in September while it reviews the case, which it will decide before the end of the term in June.
If the judges side with the Texas lawmakers and voting rights groups that challenged the state’s map, it could trigger a redrawing of congressional districts. Such a decision could affect the 2018 elections, but primaries were held in March and primary runoffs are on May 22, so it would more likely change the map for 2020.
Texas is home to one of the most competitive House races in the country — the 23rd District in southwest Texas, now held by Rep. Will Hurd — and Democrats are already targeting other Lone Star seats in 2018.
A new defense
A quick dive into the tangled procedural history of the case shows why voter rights groups have broader concerns about Texas prevailing.
In 2011, the Texas Legislature adopted a congressional map, but a federal district court blocked its use and ordered an interim redistricting plan for the 2012 elections. Then, in 2013, the Texas Legislature passed bills permanently adopting that interim, court-ordered map.
In 2017, the district court found the 27th and 35th congressional districts from the 2011 map were unlawful. Later that year, the court came to the same conclusion for the 2013 map, even though the Legislature had adopted the same court’s interim map.
Texas enacted the 2013 plan “as part of a litigation strategy” to insulate that map from challenges and “did not engage in a deliberative process to ensure that the 2013 plans cured any taint from the 2011 plans,” the district court ruled.
Now, at the Supreme Court, Texas argues that the Legislature can’t engage in intentional discrimination if it votes to put in place a congressional map that a district court had imposed on the state.
“Plainly, it did not,” the Texas brief states. “A legislature does not engage in racial gerrymandering (or intentional vote dilution) by embracing, as its own, districts that a federal court ordered the State to use after expressly concluding that they sufficed to address every ‘plausible’ constitutional or statutory objection.”
If the justices ultimately agree, voter rights groups say states could then adopt interim congressional maps — which judges often order on a tight timeline ahead of an election and before the full evidence in a case is heard — and use them as shields.
States would know those interim maps are the limit of the changes they would have to make to stop a legal challenge, Lang said. That, in turn, could make voter rights groups that challenge maps afraid to get preliminary injunctions before their full case gets heard.
“I think you could see a set of copycat litigation gamesmanship,” Lang said.
The case, Abbott v. Perez, could turn on some procedural issues, such as whether the case is ripe for the Supreme Court to review in the first place. And it also involves the Texas state legislative map.