Yesterday, the Supreme Court stayed the redrawing of Texas’ congressional and state house maps pending appeal. So what happens next?
First thing is that the appeals move forward. Texas has 60 days from the time the appeals were docketed (August 18 for the congressional appeal and August 28 for the state house appeal) to file a jurisdictional statement with the Supreme Court that tells the court why it has the jurisdiction to hear and decide the appeals.
The state could file early, but let’s assume (not illogically) that it takes its full time – that means the initial filings in the appeals would come on October 17 and 27.
The plaintiffs then have 30 days to ask the court to dismiss the appeal or, alternatively, to affirm the district court’s judgments without oral argument. They also could file early. After a period for the state to respond, the question of whether to order further briefing and set the case for oral argument will go to the Justices who will consider the issue at one of their scheduled conferences. At this juncture, we could be into November.
If the high court decides to set the case for argument (very likely, if not, in fact, a certainty), then the parties will file further briefs. Texas will have 45 days to file its opening brief, the plaintiffs will have 30 days after filing of the state’s brief to file their brief. The state then will have 30 days to file a reply, though this could be shortened depending on the oral argument schedule.
Then there is oral argument.
There are a lot of variables and the timing could be affected if the parties file their briefs, etc. early or if the Supreme Court on motion from the parties or of its own initiative expedites the schedule. But, for now, it is reasonable to assume briefing will not be finished until February at the very earliest – and it could be a bit later. Oral argument would be in February or March. And a decision from the high court likely wouldn’t come until late May or June 2018.
At that point, the Texas primary in March 2018 will have happened.
If it turns out that the Supreme Court ultimately agrees with the district court that some congressional and state house districts need to be redrawn, then the next question will be whether it is by that point too late in the election cycle for 2018. That will be a question for the district court. And even if the court decides at that juncture that then maps should be redrawn for 2018, it still will have to decide whether the Texas Legislature will be given first crack at doing so in a special session.
There are a number of ways all this could play out.
In 1996, Texas had special elections for certain congressional districts at the same time as the November election (yes, it was confusing). Something like that could happen again. Or courts could decide it is simply too late to redraw maps and have them in place by November 2018 – in which case, there could be Texas special elections in 2019. Or new maps could wait until the 2020 election.
Of course, the Supreme Court also could reverse the district court opinions in their entirety, meaning the current maps can remain in place for the balance of the decade.
Or it could send the case back to the district court with guidance for further proceedings.
In short, a lot of variations.
UPDATE: The plaintiffs have filed cross appeals of both the congressional and state house rulings. The Texas Democratic Party also has filed an appeal of earlier rulings dismissing its partisan gerrymandering claims. You can find the notices of appeal here.