The Redistricting Arguments, and Who Made Them

The U.S. Supreme Court heard arguments Monday in Perez v. Perry — the current Texas redistricting case. The full transcript of the hearing is available here. Some selected quotes — some from judges, some from the lawyers — follow.

"I don't see how we can give deference to an enacted new map, if Section 5 says don't give it effect until it's been precleared."

— Justice Sonia Sotomayor

"Texas has a very early primary. Some states have them for congressional races in — in the fall, and the latest presidential primary I think is at the end of June. So why can't this all be pushed back, and wouldn't that eliminate a lot of the problems that we are grappling with in this case?"

— Justice Samuel Alito Jr.

"Well, if we have a binary choice, if it's either the plan enacted by the Texas Legislature or the plan that's already been drawn up by the court, yes, that could be presumably resolved rather quickly. But what if neither of those is fully acceptable? Then is it — is it practicable to have the primary on the date that's been agreed on? And if not, then would you just prefer to limit us to those two possibilities or would Texas entertain the possibility of moving the primary back?"

— Justice Alito 

"Now, I do want to talk about the deer with two antlers, because what that ignores is that in the benchmark plan, the deer had one antler and an antenna."

— Paul Clement, attorney for the state of Texas, talking about the design of a district in El Paso

"I see two different problems and I'm not quite sure how they come out. One, you cannot assume that the Legislature's plan should be treated as if it were precleared. The district court in Texas cannot assume or presume what the district court here in D.C. is going to do. But on the other hand, it can't presume it the other way. In other words, it can't draw its interim plan assuming that there are going to be these Section 5 violations, because that's presuming what the Court's going to do the other way. So how do we decide between those two — you have two wrong choices. How do we end up?"

— Chief Justice John Roberts Jr.

"What would you do if — if the district court in Washington and the district court in Texas, neither one of them acts in time, and it's too late? It's too late to have any — any primaries anymore? What would happen? What would happen? You can't use the old plan. You have an absolute rule against using the new plan. What happens? You disenfranchise every voter in Texas — because there may be some voters in Texas, may be, some who will be prejudiced by using the current plan? I suggest in that situation there is nothing to do but use the Texas plan."

— Justice Antonin Scalia

"You say, well, you can't treat it as if it's being pre-cleared because that would be prejudging what the court is doing in D.C. But you have no trouble with them saying, assuming that there are going to be these Section 5 violations, in drawing additional majority-minority districts, which is just assuming in the other way what the court here in D.C. is going to do. I don't know how you lean one way and say, it's horrible, you can't use it because it hasn't been precleared, but it's all right in drawing the interim plan to treat it as if preclearance has been denied."

— Chief Justice Roberts

"There seems to be general consensus on at least three points that we've talked about today. First, that the unprecleared plan cannot take effect. The second, that the district court is foreclosed from entering and engaging in an analysis of the issues that are pending before the three-judge court in Washington, D.C., and that at this point, a court ordered plan must be implemented on an interim basis."

— Jose Garza, attorney for the plaintiffs 

"They don't say a minority coalition opportunity district just happened to emerge. It said that district 33 was drawn as a minority coalition opportunity district. And we have never held that it is appropriate or even permissible to draw a district where you are putting in together two minorities, two different minority groups. And it seems to me that that raises all sorts of different concerns. It's one thing under the Voting Rights Act to say that this group votes as a bloc and has been discriminated against in its ability to elect representatives of its choice. It's another thing to say that two different minority groups are put together because they share some particular view so that one candidate is going to be each of theirs candidate — candidates of choice. That goes quite a step further from what we have upheld under the Voting Rights Act."

— Chief Justice Roberts

"And there is no independent evidence that this was a racial gerrymander. What do courts look at for evidence of racial gerrymanders? Split voting precincts where you go out in cars and bring in minority voters. This district maintains voting precincts intact. It is entirely within one county. It is a compact district."

— Garza

"What would you think of a system in which the Court could start with the Texas plan and say — the new Texas plan — and say anything that is consistent with statutes and the Constitution can go forward, but it's Texas that has to show that consistency. So flipping the burden of proof in … a way that makes it more consistent with section 5's burden."

— Justice Elena Kagan