With interim maps being drawn in San Antonio, a D.C. panel asks the importance of a timely decision on pre-clearance issues
From Kronberg’s Quorum Report (Daily Buzz), By John Reynolds, November 2, 2011 – WASHINGTON, D.C. – With their counterparts in San Antonio hard at work this week on interim maps, a three-judge panel in D.C. deciding whether to pre-clear the three statewide electoral maps appears to be taking the foot off the gas pedal.
At the close of today’s hearing on Texas’ request to grant pre-clearance without a trial, U.S. District Judge Rosemary Collyer asked how important it was for the panel to issue a timely decision. She noted that the state had asked for a decision by Nov. 18 in order to avoid interfering too much with the rapidly approaching candidate filing deadlines. But with all the activity in San Antonio, has that deadline become optional, Collyer wondered.
She then went through a laundry list of alternative actions such as denying pre-clearance but issuing standards to guide the San Antonio panel or partly pre-clearing some parts of the map while denying pre-clearance in other parts.
Deputy Texas Attorney General David Schenck urged the judges to stick to the expedited timeline and have a decision by mid-November. He noted the San Antonio judges have frequently said they are waiting on guidance on the pre-clearance question in order to move ahead with their part of the legal challenge to the legislatively enacted maps.
The U.S. Department of Justice’s lawyer, Tim Mellett, said that the court should take the time that it needs to make a decision. That reflects the feeling among the parties challenging the maps that a slowed down process helps them. They left the courtroom encouraged by Collyer’s line of questioning.
A trial would sort out the fact disputes on whether the proposed maps have a discriminatory effect or intent. But it would also make it more likely that the coming election cycle would be run under interim maps drawn by the San Antonio judges. The parties challenging the maps adopted by the Legislature have a lot of confidence that any interim maps would advance their goal of increasing the number of minority opportunity districts.
Throughout the morning’s arguments, the state defended its straightforward use of population demographics to determine whether a district was effective for minority voters. For example, the state is saying that a district must have over half the citizens of voting age be Hispanic in order for it to be protected under the Voting Rights Act.
The DOJ has objected to the state’s methods, saying that a more complex “functional analysis” is needed to better determine if minorities have the ability to elect their preferred candidate of choice. That requires looking at other factors like turnout, voting patterns and election history.
Schenck argued this morning that the complexity of analysis demanded by DOJ was burdensome on the state. He added that the DOJ’s guidelines were vague. He likened them to a “black box,” where inputs go in and a decision mysteriously appears afterward.
Schenck was challenged on that by the judges. D.C. Circuit Judge Thomas Griffith questioned whether the DOJ’s guidelines were vague, saying the factors in the functional analysis are “spelled out.”
The DOJ’s functional analysis also admits the creation of coalition districts – in which minorities can team up to elect a candidate of choice – but Texas has been adamant in rejecting coalition districts as protected under the VRA.
Schenck argued today that following through on the DOJ’s guidelines would force the state to put race-based analysis ahead of traditional redistricting principles, such as protecting incumbents or complying with the Texas Constitution’s county line rule.
The state, Schenck said, would be put in the position of violating the 14th amendment rights of white voters if it implemented the DOJ’s guidelines. “We have ambiguous statutes that raise obvious constitutional issues,” he said, adding that the DOJ’s guidelines are intrusive enough to raise federalism issues.
The back and forth this morning on HD 33 seemed to crystallize the issue. Jose Garza, representing the Mexican American Legislative Caucus, said that removing HD 33 from Nueces County and its Hispanic Republican incumbent and placing it east of Dallas is evidence of both discriminatory intent and retrogression. The district had been represented before by a Hispanic Democrat and would be considered a Hispanic opportunity district.
Griffiths challenged him on that point, noting that opportunity districts can be eliminated if a replacement district is found. Garza replied that while that is true, “there is no replacement” in the case of HD 33.
Bruce Cohen, a special assistant to the Texas Attorney General, responded that the Legislature’s treatment of HD 33 was a direct response to the demands of the county line rule. New population numbers showed that Nueces County did not gain population in proportion to growth statewide over the last 10 years.
As a result, Nueces County only merited two representatives for this redistricting cycle. He noted that the Hispanic strength in another district, HD 34, actually increased under the new maps.
Keeping three members in the Nueces County delegation, he argued, would have meant creating a district for a racial purpose, a violation of the Constitution. As such, he said the movement of HD 33 could be described as “inevitable retrogression.”
The action shifts back to San Antonio tomorrow for the continuation of the hearings on proposed interim maps. Also due on Friday are proposals on changes to filing deadlines since at this point the chances that filing can begin as scheduled on Nov. 12 are practically nil.