A Wobbly Starting Position for Texas Elections

Monday's the day candidates can begin filing for office, and after a flurry of legal activity over the holidays, they now know what districts they're seeking to represent.

Probably.

The state has filed appeals to block court-ordered maps for the Texas House and Senate, and a similar objection to new congressional districts is in the works. Attorney General Greg Abbott also hired a noted specialist in Supreme Court appeals — former U.S. Solicitor General Paul Clement — to help his lawyers with the redistricting fight.

For the moment, all four of the new maps are in place, and they'll remain in place unless the Supreme Court hits the brakes as the state has requested. New lines for the State Board of Education sailed through the Legislature and through the courts, and most of the lawyers who sue over these things ignored that map altogether.

Over the weekend, a panel of federal judges in San Antonio voted 2-1 in favor of congressional maps that were first proposed on the day before Thanksgiving. The attorneys in that case had a noon Friday deadline to comment on the proposed maps, and the judges decided Saturday afternoon to make the proposed map the one that should be used in the 2012 elections.

Also on Thanksgiving Eve, the judges unanimously approved a map for state Senate races and approved — again on a 2-1 vote — maps for the state House.

Those four maps will be used — barring court action — in the 2012 elections. Candidates can start filing for office Monday and must do so by Dec. 15; the next day, Dec. 16, is the last day they can withdraw. The Democrats and Republicans hold their primaries on March 6; Libertarians and other parties will choose their nominees later in the year at conventions.

The differences between the Legislature's maps and the court-ordered maps range from significant to mundane. The judges said they were trying to leave the maps as similar to the current maps as population changes would allow. In its filings reacting to those maps, the state contends the courts overstepped their authority, drawing maps "without regard to established legal or constitutional principles," and argues that the maps are likely to be overturned on appeal.

The split in the court on the House map was telegraphed: Judge Jerry Smith of Houston, a Republican appointee on the 5th U.S. Circuit Court of Appeals, filed his own proposal before the court adopted a final plan. But the other two judges wrote of their surprise when he voted against them this weekend on a congressional map. Smith, they wrote, had been with them when they proposed the plan and opposed it only after reading comments from the lawyers. Those two — federal district judges Orlando Garcia and Xavier Rodriguez, both of San Antonio — voted together on both the Texas House and congressional maps. (Smith was appointed by Ronald Reagan, Garcia by Bill Clinton and Rodriguez by George W. Bush.)

In his dissent on the congressional plan, Smith said the Department of Justice objected to only two districts but that the court changed all 36 of them in minor or major ways. He wrote that it "fails the test" of drawing a map that meets federal law while "not intruding unnecessarily on legislative prerogative."

He was a lot more emphatic in his dissent on the Texas House map and effectively wrote the basis for the challenges filed by the state.

"The judges in the majority, with the purest of intentions, have instead produced a runaway plan that imposes an extreme redistricting scheme for the Texas House of Representatives, untethered to the applicable caselaw," Smith wrote. "The practical effect is to award judgment on the pleadings in favor of one side — a slam-dunk victory for the plaintiffs — at the expense of the redistricting plan enacted by the Legislature, before key decisions have been made on binding questions of law."

As the elections officially get under way, the lawyers are moving quickly to undo what happened to the Legislature's work. Abbott immediately asked the San Antonio court to stay its orders on legislative maps to give him time to pursue an appeal. The judges refused, leaving the maps in place, and Abbott is rushing an appeal to the U.S. Supreme Court. He also hired Clement, a noted appellate attorney and professor at Georgetown University, to help the state with the case. Clement has argued before the Supreme Court more than four dozen times. He's also the lead counsel in the challenge to the federal health care law that will be argued before the court during the current term.

A separate panel of three federal judges in Washington has another part of the Texas redistricting battle; they'll hold hearings early next month on whether the maps drawn by the state Legislature maintained existing protections for minority voters. The Department of Justice has argued that they don't have those protections, and the judges turned down the state's request for summary judgment, saying the state "used an improper standard or methodology to determine which districts afford minority voters the ability to elect their preferred candidates of choice." They weren't ruling against the state — just saying a trial was needed to sort things out. Because trials take time, and the deadlines for filing were upon them, and the state's only legally approved maps were out of balance with new census numbers, the federal panel in San Antonio drew new maps.

Now the state wants to spike those court-ordered maps before an election is held, in the hope that the Washington court will approve the Legislature's work and erase what the San Antonio panel did.

Candidates, meanwhile, have been scrambling to keep up, dropping out of the races they planned under the Legislature's maps and into the districts they find in the court's maps.

Now they can start filing for the jobs they want, hoping as they do so that the maps won't change again before the elections.