Over a vociferous dissent by Chief Justice Hecht (joined by Justices Boyd and Blacklock), the Texas Supreme Court has allowed a challenge to the legislature’s redrawing of House districts in Cameron, Hidalgo, and Willacy Counties to proceed. In the majority opinion by Justice Lehrmann, however, the Court held that the Mexican American Legislative Caucus did not have associational standing to challenge the redistricting plans, leaving only a candidate for District 37, Ruben Cortez, Jr., to challenge the new district that crosses the Cameron County line into Willacy County.
Under the old map, Cameron County has two wholly contained House districts, 37 and 38. A third district, 35, takes the leftover surplus in Cameron and adds a part of Hidalgo County to it. Under the HB 1, enacted last fall in special session, Cameron County gets only one wholly contained district, 38, but two split districts, 35 and now 37. The Court determined that Cortez, both a voter in the new district and a candidate for the new district, demonstrated the requisite “traceable injury” to confer standing to sue for a violation of the “single-county rule” of Art. III, §26, Texas Constitution. At the same time, the Court ruled that Cortez sued the wrong defendant (the State) but should have the opportunity to replead his §26 claim against a proper defendant (e.g., the Governor and Secretary of State). Finally, the Court held that the §26 claim is not facially invalid (and thus survives a sovereign immunity plea) because §26 contemplates that if a county has enough population for one or more wholly contained districts, it should get them.
MALC, however, which did sue the right defendants, could not show a sufficient link between its challenge and its “associational purpose” to advance the interest of Latino candidates in general. The Court thus dismissed MALC’s claims, reversing the three-judge district court that allowed MALC’s suit for a permanent injunction to continue. It also dismissed claims by Senators Sarah Eckhardt (D-Austin) and Roland Gutierrez (D-San Antonio) that the legislative redistricting plans were unconstitutional because they were enacted in special session and not in the first regular session after the release of the Census data as Art. III, §28, Texas Constitution dictates. The majority held that the legislature is free to legislate at any time under its constitutional authority to make laws, rendering the challenge facially invalid and thus barred by sovereign immunity.
Chief Justice Hecht would dismiss all claims as moot. As the plaintiffs insisted that they were not asking the Court to disturb the 2022 elections, which are obviously well under way, and the legislature could come back in 2023 and change the districts anyway, any opinion the Court might have on the §26 claim would be purely advisory. To this argument Justice Lehrmann responded that the Court was not deciding the merits but simply determining whether the trial court had jurisdiction to hear the challenge to begin with. In order to do that, it had to dip its toe into the merits to determine whether the challenge was or was not facially invalid. Based on the Court’s precedent, the majority held that it was not.
The decision leaves a live §26 challenge to Districts 35, 37, and 38 but will not affect anything during this election cycle. The legislature could respond in 2023 and moot the challenge that way, or the remaining plaintiff could continue to pursue the case before the three-judge district court (which would likely send it back to SCOTX at a future date). In any event, there is really not a whole lot left to fight about.
