Monday, November 28, 2011
As expected, Texas AG Greg Abbott today filed an Emergency Application for Stay of the three-judge panel's interim map of Texas House districts. Paul Clement signed the Application in Perry v. Perez. Appendices to the filing are here. We posted most recently here.
Texas argues that the three-judge court wrongly failed to grant any deference to the state legislature, and thus wrongly assumed the role of super-legislature, and redistricted in violation of equal protection.
As to deference, Texas argues that Upham v. Seamon governs. Under Upham, Texas claims, judicial modifications to legislatively enacted redistricting maps must be limited to "those necessary to cure any constitutional or statutory defect," even when preclearance is denied. And so much more so here, where final preclearance is pending in the U.S. District Court for D.C.
Texas says that the case is not governed by Lopez v. Monterey County, as the lower court ruled. Lopez and similar cases involved covered jurisdictions that failed to submit plans for preclearance. Not so here, Texas says.
As to equal protection, Texas argues that the three-judge court drew districts based on race, in violation equal protection, again with no showing that the Texas legislative map constituted a violation.
In arguing for emergency intervention, Texas claimed that there was nothing "interim" about the panel's map:
Elections will be conducted based on a judicially-drawn map in the absence of any finding--or even felt need to make a finding--that would justify such an extraordinary judical remedy. That is profoundly wrong.
Application, at 6.