Alito’s order on Texas’ gerrymandered maps sends a warning about what could come next

A small but ominous victory for gerrymandered maps.

Supreme Court Justice Samuel Alito speaks at the Federalist Society's National Lawyers Convention in Washington, Thursday, Nov. 17, 2016. (AP Photo/Cliff Owen)
Supreme Court Justice Samuel Alito speaks at the Federalist Society's National Lawyers Convention in Washington, Thursday, Nov. 17, 2016. (AP Photo/Cliff Owen)

Earlier this month, a panel of three federal judges held that two Texas congressional districts are illegal gerrymanders — one because it was intentionally drawn to dilute Hispanic votes and the other because it was drawn with too much reliance on race. That decision, which followed many years of litigation, will soon run headlong into a Supreme Court that has very little love for voting rights.

In a warning about what could very easily happen next, Justice Samuel Alito issued a one-page order Monday night temporarily suspending the panel’s decision. (Justices ordinarily refer matters like this to the full Court before taking action — but Alito supervises decisions arising out of the Fifth Circuit, which includes Texas, and Circuit Justices do have the power to issue such orders on their own initiative.)

It’s easy to read too much into Alito’s order, which can be contexualized by several factors. For one, the panel’s decision imposed tight deadlines on the state of Texas that the state stridently objected to in an emergency application. For another, it’s August, when the justices typically disperse all across the globe during the Court’s summer vacation. Alito likely acted on his own to preserve the status quo until the other members of his Court have enough time to consider Texas’ request.

But while Alito’s order isn’t itself a terribly big deal, the Texas gerrymandering case’s arrival on the Supreme Court’s docket is.

In a clear sign that powerful conservative interests care a great deal about preserving Texas’ existing congressional map, Texas’ application for a stay is signed by Paul Clement — the conservative superlawyer and de facto Solicitor General of the Republican Party. There is a good chance that these interests will receive a sympathetic hearing from the Republican-controlled Supreme Court.

The case, Abbott v. Perez, involves a dizzying array of issues that arose over many years of litigation.

In 2011, Texas drew congressional districts that did not comply with its obligations under Section 5 of the Voting Rights Act, which required new voting rules to be “precleared” with federal officials in Washington, D.C. before they can take effect. This was before the Supreme Court effectively deactivated Section 5 in its 2013 opinion in Shelby County v. Holder.

With no lawful map in place, the task of drawing interim districts fell to a panel of three federal judges. But their first attempt to do so was vacated by the Supreme Court, which again left the state without valid maps with a primary election looming. A rushed order handed down in March of 2012 laid out interim maps that the state could use in its upcoming primaries — much of which closely resembled the 2011 map enacted by the state legislature.

The court emphasized, however, that “this interim map is not a final ruling on the merits of any claims asserted by the Plaintiffs in this case or any of the other cases consolidated with this case.” It warned that the plaintiffs’ claims “involve difficult and unsettled legal issues as well as numerous factual disputes.” And it alluded to “the need to have the primaries as soon as possible, and the resulting need for the Court to produce an interim map with sufficient time to allow officials to implement the map.”

In 2013, in an effort to insulate the state’s congressional districts from further litigation, the state legislature enacted the interim map on a permanent basis, allowing the hastily drawn map to become the state’s official map.

Amid all this drama, federal courts never resolved the question of whether the now-permanent map complied with the state’s obligations under the U.S. Constitution and federal law — until this year.

In a March opinion examining the 2011 maps, the three-judge panel determined that one of the state’s congressional districts was intentionally drawn to dilute Hispanic votes, and another was drawn with too much reliance on race. Then, in an August opinion, the panel held that these problems were not cured by the 2013 law redrawing the maps because the two offending districts remained the same.

Texas’ primary argument is that its 2013 maps are shielded from review because they were drawn by a court — even if they were drawn under rushed circumstances, and even if they did, in many respects, use the state-drawn 2011 maps as a template. “Surely,” the state insists in its indignant stay application, “the one safe course for a legislature interested in ending costly redistricting litigation and moving on to other legislative priorities is to adopt a court-ordered remedial map as its own.”

If the Supreme Court agrees, that would mean that legally dubious districts — at least one of which, a federal court determined, was drawn for the very purpose of weakening the Hispanic vote — would never be tested for their compliance with the law and the Constitution. A judicial panel’s hasty decision, determining that allowing Texas to run its elections under an insufficiently examined map was better than leaving it with no map at all, would be the final word on this case.

There is another problem at the heart of Perez. In its stay application, Texas claims that everything will be fine if the Supreme Court just puts of resolution of this case for one more election. “Allowing the State to continue to use [the 2013 maps] for the 2018 elections will impose little harm,” the state claims. “If the plaintiffs ultimately prevail before this Court on appeal, a new map could still be drawn in time for the 2020 elections.”

The state, in other words, should be allowed to use potentially racist maps of dubious legality for a fourth consecutive election — because where’s the harm in that?

2020 will be the last election before the next redistricting cycle. So if the Supreme Court takes Texas up on its request for a delay, that will mean that all but one of the elections from the current cycle will be run under the dubious maps.

Why would any state refrain from gerrymandering, if it know that the courts will allow the map-drawers to benefit from illegal maps for so many elections in a row?