The U.S. Supreme Court heard oral arguments in the Texas redistricting cases today, but much of the discussion was focused on issues of the Court’s jurisdiction and the process by which the consolidated cases made their way to the Court.

“The Texas Legislature did not have a racially discriminatory purpose when it adopted the entire court-ordered congressional remedial plan and virtually all of the remedial state house plan,” Solicitor General Scott Keller told the justices in his opening argument. He was swiftly cut off by Justice Sotomayor, who questioned whether the Court had jurisdiction to hear the case at all.

“By not waiting for the remedy in this case, we are not in a position to be fully informed” about whether the maps’ majority/minority districts could be improved, Sotomayor said. Justice Breyer opined that allowing this appeal without a final judgment or injunction would open the door to “50,000 appeals” to the Court. Being “ordered to consult with mapdrawers” is not an injunction, he said. Justice Kagan said there was a difference between a court finding constitutional fault with a district and the remedial process which takes place following such a finding. An injunction against using deficient districts in an upcoming election comes “only at the end of that process, customarily.” She agreed with Breyer that the effect would be greenlighting appeals “straight away after the liability stage” instead of after the remedial stage. Keller argued that the state would have been held in contempt if it had not followed the district court’s instructions.

Turning to the process behind the adoption of the congressional map in 2013, Keller recited a series of steps taken by the Legislature and the number of pages of transcripts they produced before “it adopted wholesale the entire congressional map” that had been drawn by the courts. “If that is not a basis on which a legislature can rely on a federal court’s opinion, I’m not sure there’s any breathing space left,” Keller said. Kagan countered that the court’s opinion was merely preliminary.

Keller argued that the process showed the Legislature’s good-faith efforts. “There is no basis to find that the Texas Legislature was somehow invidiously racially discriminatory when … it adopted the entire congressional map and virtually all the state house map that it had been ordered to use.” Kagan asked how the Court should handle a case where “one map is later found to have all kinds of discriminatory intent surrounding it,” but the question is on a second map “exactly the same” as the first but without any of the same kind, and evidence of, discriminatory intent. Keller said, “there is absolutely no evidence in plaintiffs’ briefs that somehow the Legislature was trying to lock in discriminatory districts.”

Questions of jurisdiction predominated through the arguments made by Edwin Kneedler, representing the U.S. Dept. of Justice. On the issue of how much time the district court gave the Legislature to act, Sotomayor wondered “how much time is enough time” before a court ruling could be considered an effective injunction. Breyer, adding to his prior concern of a raft of appeals, wondered what would happen when “the word[s] ‘practical effects’” are permitted to take the place of an actual injunction.

Moving on to the merits, Kneedler argued that the Court has repeatedly presumed good faith as a starting point with “respect to legislative enactment, and that is true even if a prior legislative enactment had been found to be impermissibly discriminatory.” Kagan challenged Kneedler to explain how a second map could be free of discriminatory intent if it is “exactly the same” as a map for which “there’s all kinds of evidence of bad intent.” Kneedler said it depended on the circumstances, prompting Kagan to reply, “Of course. Everything depends on the circumstances.” Kneedler argued that the Legislature sought to end litigation by adopting the court-ordered remedial maps. Sotomayor asked whether the Legislature thought it was “ending a litigation, or are you ending the possibility of a court stopping you from discriminating?” Kneedler said her assessment was not “a fair account” of what happened in 2013.

Plaintiffs’ counsel Max Hicks said he hoped the Court would dismiss the case for lack of jurisdiction. If so, plaintiffs would ask the lower court to schedule a remedy hearing “and see if we might be able to get relief in time for the 2018 elections.” He acknowledged that there was “a pretty strong chance” the district court would not permit relief in time for the 2018 general election. Answering a question from Justice Alito, Hicks argued the Court lacks jurisdiction unless the order “has an injunction in it in so many words.”

Hicks argued that the lower court did as thorough of an analysis as it could under the time constraints, but it was “not a thorough analysis.” In other words, the fact that the district court drew maps that still contained unconstitutional districts was the result of the time constraints it was under. Hicks reminded the Justices that the state was under a federal preclearance regime, so “there had to be a map in place.” In addition, the district court advised that its remedial map was preliminary in nature.

Plaintiffs’ counsel Allison Riggs also argued that the Court lacks jurisdiction. On the merits, Riggs argued that the state likely does not accept the lower court’s finding of intentional discrimination in 2011, but “it would be very hard to challenge those findings as clearly erroneous.” Riggs argued that the court in 2012 did not have all of the evidence to enable “a delicate sussing out … to determine whether race or party predominated.” Arguing that race predominated, she pointed to the splitting of precincts in Dallas Co. to draw HD105. “You don’t have political data at the sub-precinct level.” Riggs said. “When the Legislature was drawing those lines, it was grabbing Anglo voters” to protect an Anglo incumbent.

Chief Justice Roberts asked if the Legislature’s adoption of a court-drawn map represented its “best shot at a plan that will be accepted by the district court.” Riggs replied that it should be a “starting point.” Simply adopting the remedial map as is “ignored the explicit warnings of the district court that its ruling was preliminary. It wasn’t done looking.” Even if the maps were adopted purely out of the desire to end litigation, that “doesn’t end the constitutional scrutiny.”

In rebuttal, Keller said the district court made “significant legal errors.” First, it did not presume good faith on the part of the Legislature. Second, it did not apply the correct legal standard – that the “Legislature acted because of race with an intent to harm minorities and minority voting power” – when it found the Legislature intentionally discriminated. In addition, the court’s findings of fact “were clearly erroneous.” The state hopes the Court will “find the challenged districts are valid and reverse” the lower court ruling.

The case is one of several redistricting cases pending before the Court.

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