WASHINGTON (CN) – Fighting claims over racially gerrymandered voting districts, the Texas solicitor general told the Supreme Court on Tuesday that the state can’t be responsible for adopting a map that was court-drawn.
“Here, when we have a court-ordered remedial plan and we have wholesale acceptance on the congressional side and virtually wholesale acceptance on the state house side, this was not the Legislature trying to pull a fast one on anyone,” Texas Solicitor General Scott Keller said at oral arguments this morning. “And there is absolutely no evidence in plaintiffs’ briefs that somehow the Legislature was trying to lock in discriminatory districts.”
The battle erupted in 2011 when several Hispanic Texas voters, represented by attorneys with the Mexican American Legal Defense & Educational Fund, brought racial gerrymandering claims against the state in San Antonio.
As part of its compliance requirements under the Voting Rights Act, meanwhile, Texas was waiting on a three-judge panel in Washington to approve its plan.
The Washington court would ultimately find the proposed maps unconstitutional, but the federal court in San Antonio drew interim maps for the state to use in time for the 2012 primary elections.
State lawmakers then adopted the court-drawn plans for the state house in 2013 with a few changes, but left the court’s drawing of the congressional districts intact.
One day before Perry signed the map into law, however, the Supreme Court invalidated the part of the Voting Rights Act that required Texas to seek court approval of its redistricting plans.
The plaintiffs in the Texas case then amended their challenge, contesting both the 2011 maps and the new plans the Legislature had just passed. In August 2017, the San Antonio federal court ruled that the new maps were unconstitutional because they did nothing to “cure any taint” that remained from the original maps.
The court gave Texas three days to say whether it would do a new round of redistricting, but the state instead decided to seek an emergency appeal to the Supreme Court.
At Tuesday’s hearing, Chief Justice John Roberts highlighted the unusual situation of a court finding its own map to be tainted with racial discrimination.
“Keep in mind,” he said, “this evil intent that you’re attributing comes from adopting the plan that the district court adopted and let the elections go forward under for two cycles.”
Solicitor General Keller argued this morning that it would be absurd to hold that a court could find its own map tainted by racially discriminatory intent. He said the Legislature was acting in good faith to resolve the litigation by adopting a map it believed the court would surely approve.
“If this is not a basis on which a legislature can rely on a federal court’s opinion, I’m not sure there’s any breathing space left for the legislatures engaging in redistricting to honor both their constitutional and VRA obligations,” Keller said.
The lawyer faced tough questions, however, about how he presented the case.
“Aren’t we obligated to look at the full picture, not just the piece of the picture you want us to look at?” Justice Sonia Sotomayor asked.
Supporting the state, Deputy U.S. Solicitor General Edwin Kneedler said the state Legislature is entitled to a presumption that it acted in good faith when adopting the court map. He also insisted the Legislature was doing its best to end a lengthy round of litigation.
Sotomayor questioned this as well, asking why merely attempting to resolve litigation would shield a Legislature from allegations of discrimination.
“Are you ending a litigation or are you ending the possibility of a court stopping you from discriminating?” Sotomayor asked.
Keller and Kneedler both also faced questions about why Texas took the case to the Supreme Court before the lower court had even issued an injunction.
Keller insisted that, because of the proximity to the 2018 election and the short time it gave the state to respond, the court’s order was effectively an injunction.
But some of the justices were concerned that following Texas’ reasoning would lead the court’s inbox to be flooded with appeals of lower court decisions.
“It seems to me the piece of paper here says ‘come to court,'” Justice Stephen Breyer said. “Now, if we’re going to call that a grant of an injunction, we’re going to hear 50,000 appeals from however many three-judge courts there are.”
Attorneys for the voters echoed these concerns that the case was prematurely before the court. As to the merits meanwhile, Austin attorney Renea Hicks said the Texas legislature knew just what it was doing when it approved a map so similar to its own, and “achieved everything they wanted” by adopting the court’s plan.
Southern Coalition for Social Justice attorney Allison Riggs explained the district court’s map was merely preliminary and gave great deference to the state’s original plan. The legislature did not show that it did anything to distance itself from the original, racially discriminatory map, she argued.
“More importantly, it doesn’t matter whether they wanted to end the litigation or not, it matters how they wanted to end the litigation,” Riggs said. “And they wanted to end the litigation by maintaining the discrimination against black and Latino voters, muffling their growing political voice in a state where black and Latino voters’ population is exploding.”
Riggs faced skepticism from Roberts, who wondered what else the state was to do given the pressing deadline of the primary elections.
“But if you’re the attorney general or the legislature in Texas and you want to take your best shot at a plan that will be accepted by the district court, wouldn’t you take the plan that the district court drafted?” Roberts asked.