Constitution Daily

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Divided Supreme Court halts redistricting in Texas

September 13, 2017 by Lyle Denniston


A deeply-divided Supreme Court on Tuesday night stepped back into the long-running legal battle over whether the Texas legislature has unconstitutionally discriminated against minority voters in drawing new congressional and state legislative election districts.

In two separate orders that split the Justices 5-to-4, two rulings by a three-judge federal trial court in San Antonio were put on hold to give state officials a chance to pursue appeals to the Supreme Court.  The constitutional fights over claims of racial gerrymandering in Texas have been waged for six years in the San Antonio court.

The orders – the one on congressional districting is here, the one on redrawing districts for the lower chamber of the state legislature is here – contained no explanation for blocking the trial courts’ decisions.   Those orders will stay in effect until the Justices finish whatever action they ultimately decide to take on the state’s coming appeals, which are almost certain to be accepted for review by the Justices.

In practical effect, that is likely to mean that the legislature’s maps that were found invalid by the trial court, already used in recent elections, could remain in effect well into 2018, and could be used in primary elections now scheduled for March.   Each of the maps at issue tended to favor the election chances of Republican lawmakers.

While the two orders did not identify who had granted Texas officials’ pleas for delay of the redistricting processes, it took five votes to approve of each order, and the five dissenters were identified, thus making clear who had voted in the majority.

Thus, the majority included Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Anthony M. Kennedy and Clarence Thomas.  The identified dissenters were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.  The dissenters, like the majority, did not explain their votes.

Previously, in two prior orders, Justice Alito had issued temporary delay orders to be in effect until the full court considered the state’s pleas for more prolonged postponements.  Alito did not explain those actions.

One peculiar aspect of the two separate disputes was that the San Antonio court had not actually issued any binding orders requiring that new maps be drawn, but did make plans to go ahead with at least some aspects of the remedies it would ultimately impose.   Even so, in asking for postponements, state officials told the Supreme Court that the trial court’s actions amounted to binding orders to move ahead on drawing new replacements for the districts where it had found intentional bias against Latino or black voters.

Another peculiar aspect of the cases, according to Texas’s lawyers, was that the maps that were found to be discriminatory had actually been crafted by the federal court itself, and then largely adopted by the legislature – and yet the three judges had struck them down anyway as discriminatory.

Although the trial court had actually found intentional race bias in crafting only two out of the state’s 36 congressional districts and only nine of the 150 seats in the Texas house, moving voters around when new districts are crafted could affect neighboring districts as well as those ruled invalid.

The two appeals by state officials to the Supreme Court will go directly from the trial court to the Justices, bypassing a federal appeals court, because a special federal law spells out that review procedure for redistricting cases.

Federal law also practically requires the Supreme Court to review such cases, and imposes a duty on the Justices to treat them with greater speed.  Even so, the Justices may not actually receive the Texas appeals for several weeks, and may not take initial action on them until later this year at the earliest.

In a string of decisions in recent weeks, federal courts in Texas – including the San Antonio court and a single trial judge in Corpus Christi – have ruled four times that the state legislature acted illegally against minority voters in passing new election laws – the congressional and legislative redistricting plans, a state voter ID law, and a law on language interpreters at the polls.

These actions have been strongly challenged by civil rights and minority rights groups, winning each time.  So far, only the redistricting cases have reached the Supreme Court in any form.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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