Magic Circle

Several justices queried counsel on both sides of the case on whether pushing back the primary date further into the spring or early summer would pose a problem. At one point, Justice Sonia Sotomayor asked Jose Garza, who presented oral arguments for the plaintiffs challenging the Texas maps, a detailed set of questions on how late could a decision be handed down to have a late June primary. The last Presidential primary this year is June 26. After doing some back of the envelope math, they seemed to agree that late March would be the latest possible date for establishing in-terim maps.

Many court observers in recent days have speculated on whether Supreme Court justices hostile to the pre-clearance section of the Voting Rights Act would seize on this case to make a further statement on the section’s viability. But Chief Justice John Roberts seemed to take such speculation off the table when he pointedly interrupted Garza to state that the VRA’s constitutionality wasn’t at issue today.

The difficulty in this case arises directly from the state’s maps being caught in the crossroads of two sections of the VRA with the need to hold primaries in the spring. Because of the delays in the judicial pre-clearance review (Section 5) requested by the state, federal judges in San Antonio, who are determining Section 2 claims, were asked to draw up interim maps to get Texas through this year’s elections. The state was unhappy with the changes made in the number of minority opportunity districts by the San Antonio judges. Arguing that the court erred in not giving deference to the Legislature’s rights as an elected body to draw maps, the state asked for and obtained a stay on the court’s maps.

The plaintiffs, meanwhile, argue that deferring to the state’s maps – even as a starting point for drawing an interim map – is problematic because as Sotomayor suggested today, it turns Section 5 "on its head." The plaintiffs argue further that the state is not likely to prevail on its pre-clearance review. That’s because, the plaintiffs said, the state’s maps don’t properly take into account growth among minorities since the last redistricting cycle, a position with which the judges performing the pre-clearance review seem to agree.

Since issuing a stay on the San Antonio court’s interim maps, the Supreme Court has moved very quickly to get to today’s oral arguments. That included asking both sides to submit briefs simultaneously, a rare event at the Court.

That has led some to believe that the Court will either step in to endorse a plan – either the state map or the map drawn by the San Antonio court – or quickly remand the plans back to San Antonio with instructions on how to proceed.

Instead, some justices on the Court seemed to be trying to find an acceptable course between this set of "wrong choices," as Roberts termed it. One section of the court, represented most vocally by Sotomayor, expressed strong misgivings about the state’s arguments that its maps could serve on an interim basis while the pre-clearance challenge is sorted out.

Another group of justices, represented most vocally by Justice Antonin Scalia, appeared equally troubled by what he viewed as the San Antonio court’s willingness to substitute its policy decisions on how the maps should be drawn for the Legislature’s policy decisions.

Justice Samuel Alito in a back and forth with counsel for the U.S. Department of Justice discounted the San Antonio court’s assertion that it was simply following neutral redistricting principles with its maps. He questioned the ability to term any redistricting decisions "neutral" when policy questions lurk at every turn.

Earlier, in questioning with Paul Clement – the former U.S. Solicitor General hired to represent the state in oral arguments – Alito seemed to point to a way out from what he called "a binary choice" between the state and the court plans.

"But what if neither of those is fully acceptable," Alito said. "Then is it – is it practicable to have the primary on the date that’s been agreed on? And if not, then would you just prefer to limit us to those two possibilities or would Texas entertain the possibility of moving the primary back?"

This line of questioning led several who spoke to QR after oral arguments to say they thought the Court would end up punting, putting the interim maps on hold while the pre-clearance question is resolved by a three-judge panel operating out of the D.C. federal district court.

But not everyone subscribed to that point of view. Texas Attorney General Greg Abbott told reporters afterward that he thought the justices recog-nize a "need for speed" in the matter. He described questions about the possibility of further delays in the primary as hypothetical.

Garza, meanwhile, offered a delayed primary as a fallback position for the Court, noting that he expected the D.C. court to have a final pre-clearance determination 30 days from today. A trial on the pre-clearance questions is set to begin Jan. 17 and is scheduled to last nine days with closing arguments scheduled for Feb. 3.