TexasInsider Report: AUSTIN It is judicial activism at its worst for judges to draw redistricting maps of their own choosing despite no finding of wrongdoing by the State of Texas" Attorney General Abbott said. Texas Attorney General Greg Abbott and former U.S. Solicitor General Paul Clement today asked the U.S. Supreme Court to grant an emergency stay to stop the Federal District Court in San Antonio from imposing unlawful redistricting maps upon the State of Texas.
The States appeal requests that the Supreme Court review the redistricting case on an expedited basis reverse the federal district courts unlawful decision and prohibit the district courts interim map from being implemented.
Todays appeal emphasizes that no court has at any time found anything unlawful about the redistricting maps passed by the Texas Legislature" said Abbott.
Fifth Circuit Judge Jerry Smith is the only federal court of appeals judge to review the district courts unlawful and overreaching maps. Judge Smith dissented after finding that the other two judges on the panel exceeded their legal authority and acted as a mini-legislature" by improperly imposing a runaway plan" that substitutes unelected judges policy preferences for those of the duly elected Texas Legislature:
In summary it is difficult to overstate what the majority… has wrought in ordaining its ambitious scheme. Its plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal practical or fair."
I. Federal Courts Cannot Redraw States Redistricting Plans Except to Remedy Violations of Federal Law
Under the U.S. Constitution states are granted broad authority to enact legislative and congressional districts. Unless a federal court determines that districts enacted by the Texas Legislature violate either the Constitution or the Voting Rights Act or are at least likely to constitute a violation the courts have no authority to unilaterally redraw the States maps. Even the two-judge majority that is attempting to impose unlawful maps on the State of Texas acknowledged that no court has found the States maps violate the Constitution or federal law.
As Judge Smiths dissent explains until a federal court finds that the States maps are at least likely to be found to violate federal law or the Constitution the courts must give due regard to the will of the Legislature." Because the two-judge majority has not found that the States maps violate the law or the Constitution Judge Smith chastised the district court for imposing its policy preferences on the State without showing deference to the Texas Legislature:
The majority… as though sitting as a mini-legislature engrafts its policy preferences statewide despite the fact that no such extreme modifications are required by the case law or by the facts that are before this court."
II. The States Legal Claims
The States brief explains: Because the district court did not identify an instance in which the legislatively enacted Texas House map likely violated federal law it should not have altered the map." Referring to the federal courts order as a flagrant usurpation of the Legislatures proper role in the redistricting process" the State explains that the courts order must be stayed and reversed by the Supreme Court. As the States appeal notes: The courts interim order utterly abandons… any pretense of tethering its map to politically-accountable judgments."
Echoing Judge Smiths admonition that the two-judge majoritys interim maps are extreme" the States brief notes serious federalism concerns raised by the district courts order: The extreme remedy of a wholesale rewriting of the voting map misperceives the governing presumptions and does needless violence to the delicate federal/state balance in this area."
In addition to violating the Constitutions federalism principles the district courts order improperly relies upon race to draw legislative districts. Under the Constitution federal courts are not authorized to impose race-based decision-making unless those decisions are based upon a need to remedy racial discrimination. The courts order did not find that the States maps contained a racially-motivated harm that courts are authorized to remedy. As a result the district courts decision violated the Constitutions Equal Protection Clause by engaging in racially-motivated decision making.
The district courts self-imposed race-based map drawing has the effect of being politically tinged. District lines drawn by the courts may result in Hispanic Republican elected officials being replaced by Hispanic Democrats. The Texas Legislature drew maps that attempted to protect Hispanic Republican incumbents. However the court drew a map that would replace those officeholders with Hispanic Democrats. Such outcome-oriented decision making is outside the province of the federal courts.
The States appeal of the district courts interim Texas Senate map also objects to the fact that the court redrew five senate districts because a a single disgruntled Texas Senator" filed a lawsuit at the eleventh hour claiming a violation of the Voting Rights Act even when no one else including the Department of Justice believes that claim has merit." The Texas Senate map was passed 29-2 with the support of an overwhelming bipartisan majority. As a result the States brief explains: The district court should not have fallen prey to this tactic and its order should be stayed and summarily reversed."
Todays appeal to the U.S. Supreme Court seeks emergency relief from the district courts improper redrawing of Texas Senate and House of Representatives districts. The district court issued those interim redistricting plans for state legislative districts on November 23 2011. Separately the court issued interim congressional maps on November 25. The court-drawn congressional maps will be subject to a separate emergency appeal.
TexasInsider Report: AUSTIN It is judicial activism at its worst for judges to draw redistricting maps of their own choosing despite no finding of wrongdoing by the State of Texas" Attorney General Abbott said. Texas Attorney General Greg Abbott and former U.S. Solicitor General Paul Clement today asked the U.S. Supreme Court to grant an emergency stay to stop the Federal District Court in San Antonio from imposing unlawful redistricting maps upon the State of Texas.
The States appeal requests that the Supreme Court review the redistricting case on an expedited basis reverse the federal district courts unlawful decision and prohibit the district courts interim map from being implemented.
Todays appeal emphasizes that no court has at any time found anything unlawful about the redistricting maps passed by the Texas Legislature" said Abbott.
Fifth Circuit Judge Jerry Smith is the only federal court of appeals judge to review the district courts unlawful and overreaching maps. Judge Smith dissented after finding that the other two judges on the panel exceeded their legal authority and acted as a mini-legislature" by improperly imposing a runaway plan" that substitutes unelected judges policy preferences for those of the duly elected Texas Legislature:
In summary it is difficult to overstate what the majority… has wrought in ordaining its ambitious scheme. Its plan is far reaching and extreme. It expands the role of a three-judge interim court well beyond what is legal practical or fair."
I. Federal Courts Cannot Redraw States Redistricting Plans Except to Remedy Violations of Federal Law
Under the U.S. Constitution states are granted broad authority to enact legislative and congressional districts. Unless a federal court determines that districts enacted by the Texas Legislature violate either the Constitution or the Voting Rights Act or are at least likely to constitute a violation the courts have no authority to unilaterally redraw the States maps. Even the two-judge majority that is attempting to impose unlawful maps on the State of Texas acknowledged that no court has found the States maps violate the Constitution or federal law.
As Judge Smiths dissent explains until a federal court finds that the States maps are at least likely to be found to violate federal law or the Constitution the courts must give due regard to the will of the Legislature." Because the two-judge majority has not found that the States maps violate the law or the Constitution Judge Smith chastised the district court for imposing its policy preferences on the State without showing deference to the Texas Legislature:
The majority… as though sitting as a mini-legislature engrafts its policy preferences statewide despite the fact that no such extreme modifications are required by the case law or by the facts that are before this court."
II. The States Legal Claims
The States brief explains: Because the district court did not identify an instance in which the legislatively enacted Texas House map likely violated federal law it should not have altered the map." Referring to the federal courts order as a flagrant usurpation of the Legislatures proper role in the redistricting process" the State explains that the courts order must be stayed and reversed by the Supreme Court. As the States appeal notes: The courts interim order utterly abandons… any pretense of tethering its map to politically-accountable judgments."
Echoing Judge Smiths admonition that the two-judge majoritys interim maps are extreme" the States brief notes serious federalism concerns raised by the district courts order: The extreme remedy of a wholesale rewriting of the voting map misperceives the governing presumptions and does needless violence to the delicate federal/state balance in this area."
In addition to violating the Constitutions federalism principles the district courts order improperly relies upon race to draw legislative districts. Under the Constitution federal courts are not authorized to impose race-based decision-making unless those decisions are based upon a need to remedy racial discrimination. The courts order did not find that the States maps contained a racially-motivated harm that courts are authorized to remedy. As a result the district courts decision violated the Constitutions Equal Protection Clause by engaging in racially-motivated decision making.
The district courts self-imposed race-based map drawing has the effect of being politically tinged. District lines drawn by the courts may result in Hispanic Republican elected officials being replaced by Hispanic Democrats. The Texas Legislature drew maps that attempted to protect Hispanic Republican incumbents. However the court drew a map that would replace those officeholders with Hispanic Democrats. Such outcome-oriented decision making is outside the province of the federal courts.
The States appeal of the district courts interim Texas Senate map also objects to the fact that the court redrew five senate districts because a a single disgruntled Texas Senator" filed a lawsuit at the eleventh hour claiming a violation of the Voting Rights Act even when no one else including the Department of Justice believes that claim has merit." The Texas Senate map was passed 29-2 with the support of an overwhelming bipartisan majority. As a result the States brief explains: The district court should not have fallen prey to this tactic and its order should be stayed and summarily reversed."
Todays appeal to the U.S. Supreme Court seeks emergency relief from the district courts improper redrawing of Texas Senate and House of Representatives districts. The district court issued those interim redistricting plans for state legislative districts on November 23 2011. Separately the court issued interim congressional maps on November 25. The court-drawn congressional maps will be subject to a separate emergency appeal.
