Abbott's statement on redistricting
Sun November 27, 2011 12:01 am

AUSTIN—Texas Attorney General Greg Abbott will file an emergency stay application with the U.S. Supreme Court on Monday to halt the implementation of legally flawed redistricting maps drawn by a federal panel in San Antonio.

At issue is whether the interim maps imposed by a three-judge redistricting panel violate the U.S. Constitution and federal law, and exceed the proper role of the judiciary. The State of Texas alleges the panel improperly rejected the will of the elected legislature and redrew the State’s House and Senate districts without regard to any established legal or constitutional principles.

Attorney General Greg Abbott explained that a stay of the election process is needed because “elections should not proceed based on legally flawed maps that are likely to be overturned on further review.”

Because the legally flawed maps could create confusion for Texans who wish to become candidates when the filing period opens Monday, the State of Texas is pushing quickly to restore clarity to the process. An expeditious decision is necessary so candidates will not needlessly file for office based on boundaries drawn by the interim maps that are likely to be overturned upon further legal review.

Why should the State of Texas appeal this case to the United States Supreme Court? Why should the State ask for a stay of the redistricting plan proposed by two of the three judges at the lower court hearing? Why does the State believe it can and should win at the U.S. Supreme Court?

So far, only one appellate judge has considered the redistricting plan passed by the Legislature – that is Judge Jerry Smith of the 5th Circuit Court of Appeals. He dissented from the interim Texas House of Representatives redistricting plan proposed by the two trial court judges, and provided a detailed analysis as to why the interim House plan was a stark departure from the law. The italics in the following paragraphs are words written by Judge Smith that graphically detail why justice demands the interim House redistricting plan be overturned immediately.

Judge Smith agrees that the interim Texas House of Representatives map proposed by two judges in San Antonio is legally flawed. In particular, he states that the two judge majority opinion “produced a runaway plan that imposes an extreme redistricting scheme for the Texas House of Representatives, untethered to the applicable caselaw.” Judge Smith goes on to say that imposing the majority plan “is grave error at the preliminary, interim stage of the redistricting process.” Judge Smith concludes that the majority’s“plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal, practical, or fair.”

Judge Smith’s opinion is filled with points that support the conclusion that the majority’s decision is legally unjustifiable and should be overturned on appeal. Following are just a few of those points:

“[T]he federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law.” The majority opinion violated that tenet.

“[T]he interim phase is not the time for this court to impose the radical alterations in the Texas political landscape that the majority has now mandated.”

“[T]he majority ventures into other areas of the State and, as though sitting as a mini-legislature, engrafts its policy preferences statewide despite the fact that no such extreme modifications are required by the case law or by the facts that are before this court at this early stage before preclearance and remedial hearings.”

* In emphasizing how the majority consistently ignores the law, Judge Smith points out that “the majority’s general approach of maximizing the drawing of minority opportunity districts that satisfy the Gingles preconditions was specifically rejected in Johnson v. De Grandy.”

* The majority “engages in unconstitutional racial gerrymandering without section 2 as an even colorable legal justification.”

“There is no legal requirement to create coalition districts (and certainly not one like this), even for the Legislature, and it is surely not appropriate for a court that is fashioning only interim relief.”

Additionally, General Abbott announced a significant addition to the appellate team that will be representing Texas at the U.S. Supreme Court. Paul Clement - one of the nation’s foremost appellate lawyers and former Solicitor General of the United States - is assisting the State of Texas with the redistricting challenge. Mr. Clement served as the Solicitor General of the United States from June 2005 until June 2008. In that capacity, he was the chief appellate lawyer for the United States and had primary responsibility for appellate arguments to the U.S. Supreme Court. He has argued over 50 cases before the U.S. Supreme Court and has argued more cases since 2000 than any other advocate. A top graduate of Harvard Law School and Supreme Court editor of the Harvard Law Review, Clement currently is a partner at Bancroft PLLC.

Mr. Clement has an established history of working with Texas on appellate matters. He joined Attorney General Abbott in successfully arguing before the U.S. Supreme Court to defend the Ten Commandments monument on the Texas Capitol Grounds. He is currently representing Texas and 25 other states in their legal challenge to ObamaCare that is currently pending in the U.S. Supreme Court.

* * * *

[My comments follow]

If the stay is granted--and the dissenting views of Judge Smith add weight to the state's case--this case will become a major redistricting precedent. One of the key elements in the case is whether the legislature should have given more weight to Hispanic population gains, which accounted for almost all of the increase in the state's population during the last decade. For example, my recollection is that the House map provided only one new minority opportunity district, which was not really a new district but Lon Burnam's old district. Another issue that will surely be litigated if the case is heard by the Supreme Court is whether Section 2 of the Voting Rights Act requires the drawing of minority coalition districts that include more than one minority voting group, when the requisite population is available.

Abbott has accused the Court of favoring Democratic Hispanics over Republican Hispanics, but that charge may not stand up to scrutiny. The 23rd Congressional district, currently represented by Quico Canseco, is a swing district that could go either way. It does not favor Democrats over Republicans. (Indeed, Republicans were sufficiently worried about holding onto the district that they moved low-turnout Hispanic voters into the district and moved high-turnout Hispanic voters out.) Another district, currently represented by Blake Fahrenthold, runs north along the coast and then into the Houston metro area. It is unlikely that a Democrat could win it; indeed, a Houston Republican, former tax assessor Paul Bettencourt, has shown interest in running.

Abbott does not say in his release why he regards the Court's maps as legally flawed, nor has the Court provide the reasoning underlying its plan.

The most intriguing question, as I see it, has always been whether Hispanic population growth compels the Court to draw a map reflecting that growth. The problem with drawing a map is that the Hispanic population, unlike the black population, is dispersed in metropolitan areas, making it difficult to draw districts that capture sufficient Hispanic voters to constitute a district.

 

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