ABC News’ Ariane de Vogue reports:
Jan 9, 2012 5:30pm
The congressional map is wreaking political havoc in Texas and on Monday the Supreme Court waded into the controversy, hearing arguments on who should decide where four new Texas congressional districts should be located.
The justices tried to float possible fixes to disputes relating to redistricting maps in the state, but acknowledged they were working under tight deadlines caused by the upcoming 2012 general election. The case has already caused officials to move the state’s primary.
At issue are two sets of redistricting maps drawn after new census numbers reflected that Texas’ population had exploded since the last census. Minorities account for the majority of the growth. Based on the population increase, Texas was awarded four additional seats in the U.S. House of Representatives.
One set of maps was drawn up by the Republican dominated State legislature. Democrats and minority rights groups immediately criticized the maps arguing they didn’t reflect the growth of minority representation.
Because Texas is a state with a history of discrimination in voting, it is subject to Section 5 of the Voting Rights Acts and is required to get approval or “preclearance” from the Department of Justice or a federal court in Washington before the maps can be implemented.
While the preclearance process plays out in a federal court in Washington DC, a Texas court drew up another set of maps to be used on an interim basis for the next election.
Those court-drawn maps, that favor democrats, triggered Monday’s hearing at the high court. Texas Attorney General Gregg Abbott charged they were improperly drawn up and asked the Supreme Court to take up the issue.
A few weeks ago, the Court agreed to hear the case on an expedited schedule and temporarily froze the maps.
Paul D. Clement, an attorney for Texas, told the Justices on Monday that the maps drawn up by the Texas court were “profoundly wrong.” He said the Texas court had improperly ordered sweeping changes to the legislative drawn maps and made controversial policy judgments. He said that the Texas court should have given more deference to the maps drawn up by the state legislature.
Clement said , ” a court has the authority to draw an election map, surely one of the most powerful judicial tools in the judicial arsenal, only if it is identifying specific statutory or constitutional violations or a substantial likelihood thereof.”
Clement argues that the Supreme Court should allow the maps drawn by the legislature-not the Texas Court-to be used on a temporary basis in the upcoming election while the preclearance procedure runs its course.
But minority advocacy groups , joined by the Obama administration, say that if the Supreme Court were to allow the use of legislature drawn maps , before the preclearance process has played out, it would undermine Section 5′s mandate .
Justice Sonia Sotomayor seemed to agree with that argument.
“I don’t see,” she argued “how we can give deference to an enacted new map, if Section 5 says don’t give it effect until its been precleared…..doesn’t that turn Section 5 on its head?”
As things stand now, there are no approved maps in Texas. The Justices grappled with how the Texas Court should have drawn up interim maps and what will happen next.
Justice Ruth Bader Ginsburg asked, “suppose the DC Court that has exclusive authority over preclearance in mid-February denies preclearance? ”
Justice Samuel Alito wondered why the primaries, which have already been pushed back once, couldn’t be pushed back again until the preclearance issue has been resolved.
” So why can’t this all be pushed back,” he asked ” wouldn’t that eliminate a lot of the problems that we are grappling with in this case?”
Justice Scalia took aim at the government’s proposition that the Texas Court could not rely on the legislature-drawn maps at all.
“It seems to me” he said, “the government takes an absolutist approach to the proposition that you cannot use an unprecleared plan for any purpose. All the law says is that you cannot apply a precleared plan.”
The Justices, concerned with the pressing election deadline, suggested ways to untangle the mess.
Richard L. Hasen election law expert of the University of California, Irvine said he thought the Justices were floating two different possibilities.
“One is that the court sends it back to the Texas court to consider whether Texas can prove that the legislature drawn maps are not discriminatory. The other possibility is that the Court waits for the DC Court to reach the merits of the underlying dispute. That would make the interim map moot.”
Outside of Courts minority rights advocacy groups argued that the maps used should reflect the growth in the minority community.
“We believe that when a state as important as Texas is growing due to Latino population, those districts must represent the Latino community and the districts must be drawn in such a way that Latinos will be able to elect a candidate of their choice,” said Lydia Camarillo, Co Chair of the Texas Latino Redistricting Task Force.
Lurking behind today’s case is a much larger issue regarding whether Section 5 should continue to be implemented almost 50 years after the Voting Rights Act was signed.
Conservatives argue that states should no longer be subject to preclearance restrictions so many years after discrimination occurred.
In court today when Jose Garza, representing minority advocacy groups tried to make the argument that there is “good reason” that Texas is covered by Section 5 , he was cut off by chief Justice Roberts.
“The constitutionality of Voting Rights Act not at issue here, correct?” But election law experts argue it’s only a matter of time before the Supreme Court address that critical issue.
“Section 5 has been living on borrowed time, and I’m very doubtful Texas will need to get federal approval for the 2020 redistricting season, ” says Hasen.
ABC’s Matthew Larotonda contributed to this report.