On Tuesday, the Supreme Court hears its third case this term over gerrymandering issues. This time it’s Texas, and the Court will listen to claims that the state government created district voting maps illegally harming black and Hispanic voters. Only, that is, if they get to the merits at all, because there is a possibility the justices will rule that they do not have authority to rule on the case in the first place.
Abbott v. Perez
The case has its roots in the 2010 census. As a result of population gains, Texas got four additional seats in the House of Representatives. The Texas State legislature was in charge of drawing new district lines for the state. Plaintiffs allege that the new districts were drawn with the purpose of limiting black and Latino influence on the political process through impermissible gerrymandering.
If one party, let’s say Republicans, can put together a district where almost all the voters are likely to be Democrat voters, then they can engineer other districts where Republicans can win, or be competitive, where they otherwise wouldn’t be. Texas’ 35th Congressional District is a prime example. These lines were not drawn to simply group people together for the purpose of administering federal representation:
In 2011 Texas was sued for violating the rights of blacks and Latinos with the new maps. While the challenge to the 2011 maps was underway, the state drew even newer district maps, interim maps, ordered by the district court. Those maps were then adopted by the state as permanent in 2013. As Amy Howe reports at Scotusblog:
In 2017, the district court ruled on the challenges to both the 2011 and 2013 maps. First, it held that portions of the 2011 plans violated the Voting Rights Act, the Constitution, or both. It concluded that one federal congressional district diluted the votes of Hispanic residents, while the other was an unconstitutional racial gerrymander. And it found that the state legislature had intentionally diluted the votes of minority residents in formulating the state legislative plan. The district court emphasized that the parts of the 2011 plan that it “found to be discriminatory or unconstitutional racial gerrymanders continue unchanged in the 2013 plans.” This meant, it reasoned, that the adoption of the 2013 plans perpetuated that discrimination and was “not an attempt to adopt plans that fully complied with” the Voting Rights Act and the Constitution, but instead “a litigation strategy designed to insulate” both plans from any more legal challenges. The state appealed, and the Supreme Court announced in January that it would weigh in.
That sums up the challenges involved in the principle issues in the case. What about the process question – will the Supreme Court declare that they can judge this case?
Justiciability Concerns
The opponents of the redistricting maps argue that because the ruling from the lower court did not come in the form of an appeal of an approved or denied injunction, then that means the Supreme Court cannot review district courts orders at this stage. Texas is arguing that the lower court orders functioned like injunctions and should then be treated like them for the appellate review process.
In September, the Court granted a Texas request and blocked two lower court orders from being enforced. Those orders would have required rapid if not immediate re-drawing of lines that did not violate minority rights.
