Ken Paxton

Monday, November 28, 2011

Attorney General Abbott Seeks Emergency Stay, Asks U.S. Supreme Court to Overturn Interim Redistricting Maps

AUSTIN Texas Attorney General Greg Abbott and former U.S. Solicitor General Paul Clement today asked the U.S. Supreme Court to grant an emergency stay to stop the federal district court in San Antonio from imposing unlawful redistricting maps upon the State of Texas. The State’s appeal requests that the Supreme Court review the redistricting case on an expedited basis, reverse the federal district court’s unlawful decision and prohibit the district court’s interim map from being implemented.

Today’s appeal emphasizes that no court has, at any time, found anything unlawful about the redistricting maps passed by the Texas Legislature, Attorney General Abbott said. It is judicial activism at its worst for judges to draw redistricting maps of their own choosing despite no finding of wrongdoing by the State of Texas.

Fifth Circuit Judge Jerry Smith is the only federal court of appeals judge to review the district court’s unlawful and overreaching maps. Judge Smith dissented after finding that the other two judges on the panel exceeded their legal authority and acted as a mini-legislature by improperly imposing a runaway plan that substitutes unelected judges’ policy preferences for those of the duly elected Texas Legislature:

In summary, it is difficult to overstate what the majority has wrought in ordaining its ambitious scheme. Its plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal, practical, or fair.

I. Federal Courts Cannot Redraw States’ Redistricting Plans Except to Remedy Violations of Federal Law

Under the U.S. Constitution, states are granted broad authority to enact legislative and congressional districts. Unless a federal court determines that districts enacted by the Texas Legislature violate either the Constitution or the Voting Rights Act or are at least likely to constitute a violation the courts have no authority to unilaterally redraw the State’s maps. Even the two-judge majority that is attempting to impose unlawful maps on the State of Texas acknowledged that no court has found the State’s maps violate the Constitution or federal law.

As Judge Smith’s dissent explains, until a federal court finds that the State’s maps are at least likely to be found to violate federal law or the Constitution, the courts must give due regard to the will of the Legislature. Because the two-judge majority has not found that the State’s maps violate the law or the Constitution, Judge Smith chastised the district court for imposing its policy preferences on the State without showing deference to the Texas Legislature:

[T]he majority 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.

II. The State’s Legal Claims

The State’s brief explains: Because the district court did not identify an instance in which the legislatively enacted Texas House map likely violated federal law, it should not have altered the map. Referring to the federal court’s order as a flagrant usurpation of the Legislature’s proper role in the redistricting process, the State explains that the court’s order must be stayed and reversed by the Supreme Court. As the State’s appeal notes: The court’s interim order utterly abandons any pretense of tethering its map to politically-accountable judgments.

Echoing Judge Smith’s admonition that the two-judge majority’s interim maps are extreme, the State’s brief notes serious federalism concerns raised by the district court’s order: The extreme remedy of a wholesale rewriting of the voting map misperceives the governing presumptions and does needless violence to the delicate federal/state balance in this area.

In addition to violating the Constitution’s federalism principles, the district court’s order improperly relies upon race to draw legislative districts. Under the Constitution, federal courts are not authorized to impose race-based decision-making unless those decisions are based upon a need to remedy racial discrimination. The court’s order did not find that the State’s maps contained a racially-motivated harm that courts are authorized to remedy. As a result, the district court’s decision violated the Constitution’s Equal Protection Clause by engaging in racially-motivated decision making.

The district court’s self-imposed race-based map drawing has the effect of being politically tinged. District lines drawn by the courts may result in Hispanic Republican elected officials being replaced by Hispanic Democrats. The Texas Legislature drew maps that attempted to protect Hispanic Republican incumbents. However, the court drew a map that would replace those officeholders with Hispanic Democrats. Such outcome-oriented decision making is outside the province of the federal courts.

The State’s appeal of the district court’s interim Texas Senate map also objects to the fact that the court redrew five senate districts because a a single disgruntled Texas Senator filed a lawsuit at the eleventh hour claiming a violation of the Voting Rights Act even when no one else, including the Department of Justice, believes that claim has merit. The Texas Senate map was passed 29-2 with the support of an overwhelming, bipartisan majority. As a result, the State’s brief explains: The district court should not have fallen prey to this tactic, and its order should be stayed and summarily reversed.

Today’s appeal to the U.S. Supreme Court seeks emergency relief from the district court’s improper redrawing of Texas Senate and House of Representatives districts. The district court issued those interim redistricting plans for state legislative districts on November 23, 2011. Separately, the court issued interim congressional maps on November 25. The court-drawn congressional maps will be subject to a separate emergency appeal.