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December 10th, 2018

On Law

Seven years into the gerrymandering case, High court may be no closer to settling dispute

Robert Barnes

By Robert Barnes The Washington Post

Published April 25,2018

Seven years into the gerrymandering case, High court may be no closer to settling dispute
The Supreme Court is no stranger to the legal battles waged by minorities and voting rights groups to overturn Texas' redistricting plans they say intentionally discriminate against black and Latino voters.

"We're seven years into the case after three trials and two appeals to this court," said Texas Solicitor General Scott Keller.

But it was unclear after nearly 80 minutes of arguments whether resolution is any closer. The liberal justices seemed to favor the challengers, while the conservatives seemed to think that Texas - now supported by the Trump administration - has done what it should.

And Justice Anthony Kennedy, who probably holds the deciding vote, didn't say much at all.

There is a real chance that the court could decide that, even after all this time, the case is not yet ready for the Supreme Court to weigh in.

In the latest incarnation of the case, a three-judge panel in Texas last summer said two congressional districts and a handful of legislative districts were unconstitutional, and called on the governor to convene the legislature to draw new lines.

Before that could happen, Texas went to the Supreme Court. In September, the court on a 5-to-4 vote put that order on hold until it could hear the case.

But not waiting for the process to play out truncated things at a critical time, the liberal justices said Tuesday.

"By not waiting for the remedy in this case, we are not in a position to be fully informed," said Justice Sonia Sotomayor.

Keller said it didn't matter. A bit of history is needed:

After the 2010 census, Texas was awarded four new congressional districts. The legislature's new maps drawn to accommodate the growth were found by the district court to probably be unconstitutional, and the judges drew interim maps to be used in the 2012 elections.

In 2013, the Republican legislature voted to permanently adopt those maps.

Keller said it was a compromise and makes no sense to say maps drawn by judges were unconstitutionally discriminatory. Texas should receive a presumption of good faith by adopting the judge-drawn maps, he said.

"This was not the legislature trying to pull a fast one on anyone," Keller said.

But Austin lawyer Max Renea Hicks, representing the challengers, said the 2012 elections showed that the maps had the intended effect.

"They had achieved everything they wanted with this map with respect to these districts, with regard to the . . . tamping-down of racial voting rights and so on," Hicks said.

Attorney Allison Riggs, representing challengers to the legislative districts, agreed that the legislature's decision to adopt the interim, judge-drawn maps was because they were favorable to them, not because they were fair.

Almost all of the growth that powered the new congressional districts was in black and Hispanic residents, the lawyers said, but the maps fulfilled the legislature's goal of protecting Anglo Republicans.

But Chief Justice John Roberts and Justice Samuel Alito were skeptical that the legislature's actions showed intentional discrimination.

Adopting the court-drawn maps "ought to give them some presumption of good faith moving forward, which is significant on the determination of their intent to discriminate," Roberts said.

Alito asked: "What is your evidence that the state adopted the plan previously approved by the court for an invidious reason?"

Riggs said there was enough evidence to convince the lower court that the plan was discriminatory.

The Texas case is the third gerrymandering case considered by the court this term.

In the other two - challenges from Wisconsin and Maryland - the court has considered whether partisan gerrymandering in the two states made their plans unconstitutional. The justices have never thrown out a state's plan on the finding that political bias so infected the process that voters' rights were violated.

The cases argued Tuesday are both Abbott v. Perez.

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