Today in San Antonio, the three-judge panel began a full day of hearing final arguments in the Texas redistricting case, which affects the scheduling of the state primary and state convention. We can report that the Court appears to be backing off of its stated intention to have a unified April Primary Election. This comes after assorted county election officials stepped forward to testify that it would be impossible to hold a unified April Primary Election – even if they had maps today.
Although the Republican Party of Texas had Harris County Clerk Stan Stanart appear before the panel to testify that an April 24th primary election is still doable, our sense is the Court now believes that April is no longer viable for a single unified primary. From the Court's questioning, it seemed that at least one judge and possibly two would prefer to go ahead with a Presidential primary and statewide races in April and the other races at a date to be determined in the future. How the extra primary election would be funded appears problematic at this time. We won't know until the Court rules whether these conclusions are correct. Our best estimate right now is that there will be a single unified primary on May 29th, absent the state coming up with funds for a split primary.
Because the Texas Democratic Party's lawyers backed up Chairman Munisteri's testimony at the hearing that it is practically not possible to move the State Conventions at this late date, one thing we know for sure (and the Court is aware of this fact), is that you can't schedule the primary after the State Conventions unless (as the Democratic lawyer stated) the State Parties can find a field somewhere to hold their conventions and if we could guarantee good weather.
Chairman Munisteri testified to the Court that it would be impossible to select delegates in accordance with the process prescribed in the Election Code, if the primary was not held until May 29th and the state convention began on June 7th. However, the Court signaled that it would be open to judicial relief to allow the State Parties to select their delegates in a way that didn't require precinct conventions to be tied to the primary. The Texas Democratic Party lawyer went a step further and argued that even though the Election Code prescribes the process, that it is their position that the Election Code is unenforceable because the political parties are private organizations and thus they could change their rules without a court order. The RPT believes it would be risky to do so and prefers the route of obtaining judicial permission prior to such action. In the event the Court schedules a May primary, Chairman Munisteri plans to schedule an emergency teleconference with all SREC members and Republican County Chairs to discuss alternative processes for picking State Convention delegates, in the hopes of coming to a consensus as to what to suggest to the court for relief.
The court also heard presentations from several plaintiffs and the State of Texas as to their position relative to how maps should be drawn. Last month, the U.S. Supreme Court directed the three-judge panel to issue new maps that were neither the legislative-drawn lines, nor the subsequent lines issued by the San Antonio three-judge panel in November. In issuing that directive, the Supreme Court set forth the criteria by which lines could be altered. Specifically, the Supreme Court said that if the San Antonio panel found there was a "not insubstantial" chance of violation of Section 5 of the Voting Rights Act, that lines could be altered to comply with Section 5. A Washington, D.C. three-judge federal panel has had a trial on Section 5 so as to make a final determination as to violations, but the Supreme Court indicated that the San Antonio three-judge federal panel should issue interim maps which correct any deficiencies in districts in which the "not insubstantial" standard was met. Moreover, the San Antonio three-judge panel has jurisdiction over Section 2 violations of the Voting Rights Act and the Supreme Court indicated that if there were violations of this provision, that lines could be altered as well.
In recent orders, the San Antonio three-judge panel had directed the plaintiffs and the State of Texas (representing the legislative maps) to see if they could agree which districts fell under these criteria and suggest fixes. Last week, the Attorney General put forth a proposed set of maps which addressed potentially problematic districts while at the same time, tried to stay as close to the original legislative maps as possible. Some of the plaintiffs' groups agreed to some of the proposed lines. The hearing today flushed out the differences, with each party stating their differences and arguments thereof. The Attorney General's proposals put forth what it believes are 50 Texas State House districts which have an opportunity for minorities to elect their candidates of choice – a number which meets the benchmark (2010) plan's number of 50 such districts. Some of the plaintiffs' groups however, want 51 or more of these districts, and a much larger number of "coalition" districts, which would likely elect Democrats, but would not have a majority of their citizen voting age population be comprised of a single minority group. Another group of plaintiffs which opposes the suggested lines put forth by the Attorney General, was arguing for 67 majority-minority districts in the State House. In effect, their proposed maps would substantially reduce the number of Republican legislators.
The Latino Redistricting Task Force, which represents a number of the Latino groups, has indicated that they would not object to much of the proposed map, but they disagree over House District 144 (currently represented by Representative Ken Legler). The Attorney General's map draws that district with 48% registered voters with Spanish surnames. The Latino Redistricting Task Force would not accept any lines for HD 144 that do not have at least 50% of registration of Spanish surnames. That particular plaintiffs' group was also willing to accept the proposed Congressional maps which would split the four new Congressional districts into lines which would result in two new Republican districts – an improvement over the three-judge panel's maps but which is down one from the maps originally drawn by the Legislature. Many of the other plaintiffs' groups opposed the proposed Congressional map and wanted at least one more Democratic Congressional district in addition to the two new Democratic districts contained in the Attorney General's map. Congressman Joe Barton has intervened, and is arguing for one more Republican district.
The State Senate map has really only one district in dispute – that being Senate District 10, the district held by State Senator Wendy Davis. Apparently the Attorney General and the plaintiff Democrats are not that far apart in respect to their proposals. Under virtually every anticipated scenario, at the very least that senate district would be winnable by a Republican candidate. The final battle over the lines will determine whether it is a toss-up district, or one where the Republicans will have a slight advantage.
To complicate things further, the Department of Justice sent a lawyer who argued that there were five Texas House districts on the previously-drawn legislative map, which the Department of Justice is insisting be changed because of violations to the Voting Rights Act. The DOJ lawyer also stated emphatically that the federal court panel has limited authority to alter deadlines that were controlled by federal statute.
At this time, it seems more likely than not, that all the parties will not come to an agreement on the Congressional and Texas House maps. Therefore, we are assuming that once the hearing is concluded tomorrow (Wednesday, Feb. 15) that the final map lines will be decided by the three-judge panel as opposed to the parties in the lawsuit. To add another wrinkle, one of the judges suggested that if the primary will have to be delayed until May anyway – that the San Antonio three-judge panel may delay their decision for at least a while to see if they get a ruling out of the Washington D.C. three-judge panel regarding potential Section 5 violations so that they can incorporate the decision into their deliberations.
After attending in full and testifying at the hearing, Chairman Munisteri issued the following statement – "It is the Republican Party of Texas' position that a single unified primary is still possible for April. If the Court delays the primary further, it will be a great disappointment to Republicans who wish to have early participation in the Presidential primary process. I would like to applaud the work of General Abbott's Deputy Attorney General for Defense Litigation, David Mattax, who I thought did an excellent job refuting the Democrats' contention that Republicans intentionally discriminated against minorities, as well as providing excellent rebuttal district by district to the plaintiffs' attorneys contention that more districts needed to have their lines altered with the intent of creating additional Democratic districts."
The hearing will continue tomorrow, but is expected to conclude by 2:30pm. We should know tomorrow for certain, whether we have a split primary or a unified primary. We should also know whether April is definitely out. We hopefully will have some guidance as to what flexibility the parties will have in altering the delegate selection process. We will provide a further report after tomorrow's hearing.
Advisory to all Republican county chairmen, precinct chairmen, and party activists – In the event that the primary is pushed back further, the RPT will still seek court relief to allow district conventions to go forward on the dates you already have scheduled but with the different delegate selection process. Consequently, at this time – we urge you not to cancel your district conventions as they still may occur on the same day. We anticipate having a conference call with the SREC in the next week to discuss the situation and examine options together. Thank you for your understanding and patience in this difficult situation.