Forget everything. The candidate announcements, the relocations, the decisions not to run again, the who vs. who vs. who and the campaign finance. Poof!
With a one-paragraph order on Friday night, the U.S. Supreme Court froze the Texas congressional and legislative elections and replaced pre-holiday candidate filings, politicking and fundraising with uncertainty and chaos.
The proceedings could delay some or all of the state’s primaries. The state has suggested splitting those elections, keeping the presidential, State Board of Education and other statewide primaries in place and moving congressional and legislative primaries to a later date; lawyers on the other side suggest that if any of the spring elections are delayed, all of them should be delayed. While the state’s Republican leadership wants to freeze candidate filings and election preparations in place, lawyers on the other side say they should proceed on schedule until and unless the Supreme Court actually does something that would make March primaries impossible.
Republicans, distressed by the San Antonio court’s maps, hailed the Supreme Court’s order as a victory. Their hope is that the lines drawn by legislators — or something close to them — will be used in next year’s elections. Those are the maps being defended by the state’s attorney general. Democrats and minority groups have been fighting those maps, saying they don’t fairly reflect the state’s growth over the last 10 years, 89 percent of which occurred in Texas’ Hispanic and African-American populations.
The San Antonio court’s maps have more seats where minority voters could determine a race’s outcome than the Legislature’s map. But the maps would likely lead to fewer Republicans than the plans drawn by lawmakers, especially in the Texas House. Either set of maps, however, would result in strong Republican majorities in the Texas congressional delegation, in the state Senate and in the state House.
The geographical changes in both sets of maps made enemies of allies: Take, for example, state Rep. Joaquin Castro, D-San Antonio, who filed against U.S. Rep. Lloyd Doggett, D-Austin, because they both wanted to represent a newly drawn Central Texas district. Castro moved to another race when U.S. Rep. Charlie Gonzalez, D-San Antonio, announced plans to retire. And Doggett’s existing district mutated again, so he didn’t have to relocate. What the Legislature drew as a Republican district stretching from Hays County all the way to Tarrant County, the courts drew as a Democratic district centered in Travis County. That put a handful of candidates out of business who could now come back if the maps change again.
Hours before the Supreme Court hit the brakes, Victoria Republican Geanie Morrison announced she wouldn’t seek an eighth term in the Texas House. She had been drawn into a district also occupied by Rep. Todd Hunter, R-Corpus Christi. Among other things, she said in her announcement, she thought redistricting had made the race unappealing.
Rep. Aaron Peña of Edinburg switched parties last year, becoming a Republican. The Legislature’s map protected him. The court-drawn map left him with a district he was unlikely to win, and he announced his decision not to seek another term. Now, the maps could change again. Other incumbents, like state Reps. Ken Legler, R-Pasadena, and Dee Margo, R-El Paso, are watching the courts decide their political fates. Both got winnable districts out of the Legislature and districts from the courts that would be difficult to defend. Other candidates across the state — in both parties — find themselves in the same uncertain situation.
It’s clear what happens next in the Supreme Court: Justices have asked lawyers for briefs and counter-briefs, and set a Jan. 9 date for a hearing.
Less clear is what happens in the lower courts. The San Antonio court, procedurally, is waiting for the federal judges in the Washington district court to pre-clear the Legislature’s maps or to ask for some repairs to those maps to bring them into compliance with the Voting Rights Act. That Washington panel hasn’t set a trial date, and has a telephone conference with the lawyers and parties scheduled for later today. The San Antonio court still has jurisdiction over the election dates, according to some of the lawyers, and could adjust filing and primary election deadlines to accommodate the legal timetables. That court announced over the weekend that it will hold hearings on the filing and election schedules on Tuesday.
The high court needed only six sentences to toss the Texas primaries into disarray:
“The applications for stay presented to Justice Scalia and by him referred to the Court are granted, and it is ordered that the orders issued by the United States District Court for the Western District of Texas on November 23, 2011, in case Nos. 5:11-CV-360, and 5:11-CV-788, and the order of November 26, 2011, in case No. 5:11-CV-360, are hereby stayed pending further order of the Court. In addition, the applications for stay are treated as jurisdictional statements, and in each case probable jurisdiction is noted. The cases are consolidated and a total of one hour is allotted for oral argument. The briefs of appellants and appellees, not to exceed 15,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Wednesday, December 21, 2011. Reply briefs, not to exceed 15,000 words, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Tuesday, January 3, 2012. The cases are set for oral argument on Monday, January 9, 2012, at 1 p.m.”
Candidates started filing for office on Nov. 28. Some made plans to move their homes from hostile to friendly political territory so that they could either stay in office or win their way in. That filing period for congressional and legislative candidates is still technically in place and continues through Thursday, Dec. 15.
The Texas primaries are set for March 6. Even without the legal rumpus, the calendar is tight. It takes time to print up ballots, program voting machines, to redraw precinct lines all over Texas to reflect population growth in the state, to get everything ready for voting that will begin on Feb. 21. And federal and state law has been changed to allow more time to get voter registration and ballot materials into the hands of voters outside the country. The filing deadline was moved back to mid-December from early January this year, and the primary runoffs were pushed from April to May for the same reason.
Those deadlines, and the fact that no trial date had been set for pre-clearance of the lawmaker-drawn maps, prompted the San Antonio court to start drawing maps.
While it’s not clear what’s next, it is obvious that it will be difficult to hold March 6 primaries for the congressional delegation and the Legislature if new maps have to be drawn or major revisions must be made after the Supreme Court hears the case next month. The cases don’t involve other races on the Texas ballot. Local judicial and county elections at the bottom of the ballot, and statewide and State Board of Education elections at the top could proceed in spite of the legal storms.
But that raises potential problems. Local political precinct lines need to be redrawn before the primary to accommodate population changes and new lines in maps that are legal, such as those drawn for the SBOE and for various county commissioners courts around the state. They’d have to be redrawn again when congressional and legislative maps are approved sometime next year. It’s a logistical mess for election officials. Two elections would have to be held, doubling the cost of the primaries.
Texas can’t move any of the primary elections without federal approval. Changing dates without a court order requires federal pre-clearance under the Voting Rights Act.
The political parties are waiting for instructions from state election officials, who are waiting for word from the attorney general. The state’s top lawyer will start the week by asking the courts for guidance. Attorney General Greg Abbott will ask the courts to lift the deadlines for congressional and legislative filings and to let the other primaries proceed as planned. Lawyers for the Texas Democratic Party and for some of the minorities who sued the state over the Legislature’s maps say the elections should be left alone until the courts settle on a map. If that turns out to be the map drawn by the San Antonio court, there’s no reason to delay the primary, they argue. If it’s not, all of the primaries could be postponed and held on a single date.
“Let’s give the election a chance to go ahead until we know something different,” said Chad Dunn, an attorney for the Democratic Party. “If there are major adjustments to the maps, then we can adjust the dates.”
In earlier pleadings, Abbott suggested moving the legislative and congressional primaries to the next uniform election date — May 22. That’s when the state will be holding runoffs for the March primaries (using different local precinct lines); runoffs for the legislative and congressional primaries could then be held later in the summer. He’ll get a fight there; lawyers on the other side say all of the state’s primaries should be held on a single election date.
At the moment, candidate filings are frozen at the GOP. Since there aren’t any maps, they can’t accept applications to run, and the money that comes with it, according to Chris Elam, a spokesman for the Republican Party of Texas. Dunn, the attorney for the Texas Democratic Party, said they’ll continue to accept applications, since the courts haven’t done anything to the filing dates. “Our position is that you file for the place where you live,” he said.
Steve Maxwell, the chairman of Tarrant County’s Democratic Party, sent an email to his members this weekend saying filing will stop for now and adding that the court’s action raises unanswered questions about drawing for ballot order, for the March 6 primaries and for Senate district conventions.
“This decision will result in a great deal of unnecessary confusion, waste of taxpayer money and risks additional disenfranchisement of voters,” he wrote.
A split primary could affect turnout, and won’t happen without a legal fight. Presidential elections draw more voters to the polls, in both parties. Putting the presidential primary in March and other races in May could mean fewer voters will decide the party nominees for Congress and the statehouse.
“I think you’ll see an effort made by the state to move the primaries,” said Gerry Hebert, one of several attorneys who sued the state over the Legislature’s maps.
If that happens, it should happen to primaries for president, U.S. Senate and everything else, he said: “If you move them back, you should move everything back. It’s difficult to get everyone to show up once, let alone twice.”
ROSS RAMSEY is editor of The Texas Tribune where this story was originally published. It is reprinted here through a news partnership between the Tribune and the San Marcos Mercury.