SAN ANTONIO (CN) - Federal judges have approved three substitute maps for Texas redistricting while the state awaits a decision from Washington about whether state legislators had pushed for plans that put minority voters at a disadvantage.
The majority of a three-judge panel charged with producing interim redistricting plans issued orders on Nov. 23 and 26, adopting court-drawn plans for the Texas House of Representatives, the state Senate and the U.S. House of Representatives.
The panel in the Western District of Texas has until the end of November to accomplish what its members called the "unwelcome" and "unwanted" task of coming up with redistricting plans, since the maps approved by the state Legislature were challenged as unfair to minority voters and did not receive preclearance.
"In sum, the court's map simply maintains the status quo as to the challenged districts pending resolution of the preclearance litigation while giving effect to as much of the policy judgments in the Legislature's enacted map as possible," according to the 14-page decision authored jointly by U.S. District Judge Orlando Garcia and U.S. District Judge Xavier Rodriguez.
"Not everyone will get what they want from the court's interim map. But, the court concludes by stating expressly what is implicit in the court's explanation of how it drafted the interim map: the plan was developed without regard to political considerations or the interests of particular groups of people."
The majority insisted that the "interim map is not a ruling on the merits of any claims asserted by the plaintiffs in this case, any of the other cases consolidated with this case, or the case pending in the United States District Court for the District of Columbia."
Earlier this month, a three-judge panel in Washington refused Texas' bid for summary judgment that would approve plans for the U.S. House of Representatives, the Texas House of Representatives and the state Senate.
Back in Texas, the court said it is not in a position to use the Legislature's contested map for the Texas House. "The Legislature's enacted plan is by the state's own admission a radical partisan gerrymander," Garcia and Rodriguez wrote. "By asking the court to adopt it, the state is asking the court to conspire with the Legislature to enact a partisan agenda. This a court cannot do."
In a dissenting opinion, 5th Circuit Judge Jerry Smith said his colleagues on the panel had "produced a runaway plan that imposes an extreme redistricting scheme for the Texas House of Representatives, untethered to the applicable caselaw."
"The practical effect is to award judgment on the pleadings in favor of one side - a slam-dunk victory for the plaintiffs - at the expense of the redistricting plan enacted by the Legislature, before key decisions have been made on binding questions of law.
"Unless the Supreme Court enters the fray at once to force a stay or a revision, this litigation is, for most practical purposes, at an end," Smith added.
Smith also dissented in the Nov. 26 order that approved a map of U.S. Congressional districts, which he called a "forthright," but ultimately unsuccessful, "attempt to fashion an interim plan that meets the requirements of the Voting Rights Act while not intruding unnecessarily on legislative prerogative."
Texas quickly moved to stay all three interim maps, but the majority denied the motions in nearly identical 10-page orders that again included dissents from Smith.
The majority reiterated that it could not simply remedy the state's map and call it a day. "Had the state chosen the path of administrative preclearance through the Department of Justice, we would perhaps be in the remedial phase right now," Garcia and Rodriguez wrote. "However, the state chose to file a lawsuit in the United States District Court in the District of Columbia, which is still pending, and we are not in the remedial phase. Instead, we are in an interim phase where the court has been placed in the position of crafting an independent court drawn plan that complies with the U.S. Constitution and sections 2 and 5 of the Voting Rights Act."
"The individuals who would suffer irreparable injury if the stay were granted are the citizens of Texas, by being deprived of the opportunity to vote in the upcoming election under the schedule currently in place," the majority added.
Smith's dissenting opinions say he would stay the Nov. 28 start date for candidate filing.
As the court dealt with producing the interim plans, Texas State Rep. Sarah Davis filed a motion to intervene questioning Judge Garcia's participation in the case.
In a docket entry, Smith and Rodriguez agreed that Garcia does not need to disqualify himself and that he had previously disclosed his relationships with various parties, including the fact that he is married to the sister of Texas state Sen. Leticia Van De Putte.
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