The Supreme Court was sharply divided on Tuesday as the justices considered a lower court opinion that invalidated congressional and statehouse maps in Texas, holding that they discriminated against minority voters.
Last fall, in an early indication that the case could break down along ideological lines, the justices split 5-4 and voted to freeze the lower court opinion while the court considered the case.
It was that order, which likely means that the disputed maps will be used in the upcoming midterm elections, that infuriated the liberal justices on Tuesday who suggested that the Supreme Court had stepped in prematurely and therefore had no jurisdiction to hear the challenge.
While the district court had issued a ruling invalidating the districts it had not yet taken the final step of telling the state how to redraw the maps.
What ends the case, said Justice Sonia Sotomayor, is a “final injunction.” Other liberal justices, Elena Kagan and Stephen Breyer, had a similar sentiment.
The conservatives did not focus as much on the threshold question of the court’s ability to decide the issue and Chief Justice John Roberts suggested that Texas legislature deserved “some presumption of good faith.”
The case is the latest in a series of voting rights cases the Supreme Court is hearing this term including two partisan gerrymander cases and another challenge to Ohio’s system for purging voters from its rolls.
Josh Douglas, an election law expert at the University of Kentucky College of Law, says that if the justices rule in favor of the challengers in the case and find intentional discrimination in how the Republicans drew the lines, it could be a watershed ruling.
“If the court rules against Texas, the justices would be saying that the Republican-controlled legislature had an improper racial motive,” he said.
Tuesday, the conservative justices focused on the unusual circumstances in the case and did not seem inclined to agree with the lower court, in the case that has been caught up in the courts for almost a decade.
After the last census, voting rights groups such as the Southern Coalition for Social Justice and the Mexican American Legal Defense Education Fund challenged the maps drawn in 2011 by the Republican-led legislature.
They won the challenge when a three-judge court of the District Court for the Western District of Texas held that the maps were intentionally discriminatory and proceeded to order new interim maps to be drawn up for the next election. The court stressed that its ruling was not a final judgment, but necessary due to impending election deadlines.
The legislature subsequently adopted those maps – called Plan C235 – on a permanent basis while the litigation continued.
After a trial in 2017, the district court then invalidated two districts of Plan C235. The court noted that “specific portions” of the 2011 plans that were found to be discriminatory or unconstitutional “continue unchanged.” In a similar case the court also invalidated several state legislative districts.
“The discriminatory taint was not removed by the Legislature’s enactment of the court’s interim plans, because the Legislature engaged in no deliberative process to remove any such taint, and in fact intended any such taint to be maintained but be safe from remedy,” wrote US District Court Judge Xavier Rodriguez of the Western District of Texas.
Lawyers for Texas say the maps should stand, particularly because they were imposed by the court and adopted by the legislature. Texas Solicitor General Scott Keller told the justices that the legislature was not “trying to pull a fast one,” and he suggested that the district court’s opinion was wrong to say the legislature had engaged in intentional discrimination when it adopted – as its own – the same plans that the court had ordered the state to use in the 2012 election.
“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,” Keller said.
In court, the conservative justices suggested they agreed with Texas. Roberts said there was a “strong” argument that the legislature adopted a court drawn plan, and asked if that didn’t demonstrate “good faith” on the part of the law makers. Justice Samuel Alito agreed that the district court drew the interim plans after a “thorough analysis.”
Lawyers for the challengers emphasized that when the district court allowed the maps back in 2012, it was simply a preliminary ruling before an impending election. Allison Riggs of the Southern Coalition for Social Justice said that afterward the court “sussed out” a troubling pattern aimed at discriminating against minorities. She said the only reason the state had adopted the plans was in order to end the litigation and muffle the voices of minorities.
The ruling in the case is due by late June, but Douglas points out that in 2020, after the next census, states will have to once again redraw lines.
“Depending on the court’s ruling, the Texas case could have a meaningful impact on how states all over the country draw their next maps,” he said.