Texas electoral case difficult for high court to untangle

4 new districts disputed; vote looms in April; House majority may be affected

‘We’re all under the gun of very strict time limitations,’ said the Supreme Court’s chief justice, John G. Roberts Jr.

WASHINGTON - Several members of the Supreme Court appeared frustrated yesterday as they surveyed the available options and looming deadlines in a major voting rights case from Texas that could help decide control of the House.

The case is a result of a population boom in Texas, which gained more than 4 million people in the past decade, about 65 percent of them Hispanic. The growth entitles the state to four additional congressional seats.

The Texas Legislature, controlled by Republicans, enacted new electoral maps for both houses of the state Legislature and the US House of Representatives in May and June to take account of the growth in population, and Governor Rick Perry signed them into law in July.


Under Section 5 of the Voting Rights Act of 1965, though, the maps may not be used until they are approved, or “precleared,’’ by either the Justice Department or a special three-judge court in Washington. Texas officials chose to go to court, and they have so far not received clearance.

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In the meantime, a second special three-judge federal court, this one in San Antonio, drew a competing set of electoral maps when Texas failed to obtain federal clearance. The question for the Supreme Court justices is whether the court-drawn maps give enough deference to the Legislature’s choices. The answer may help determine whether the new districts elect Democrats or Republicans.

Texas officials appealed the San Antonio court’s decisions, saying the judges in the majority had indeed not paid enough deference to the Legislature’s maps.

Democratic and Hispanic groups countered that the Legislature’s maps deserve no deference because they have not been cleared by the federal government. They also said the maps were flawed in failing to ensure that Hispanics are able to elect candidates of their choice in some of the new districts.

Justice Sonia Sotomayor seemed sympathetic to those arguments. Since the Legislature’s new maps have not been cleared, they are invalid, Sotomayor said. “The only thing that exists are old maps until you get preclearance,’’ she said. But the old maps contemplate 32 congressional districts, not 36.


Several justices asked just how quickly they would have to act to make sure elections in Texas, where the primaries have already been pushed back to April, can proceed in an orderly way. “We’re all under the gun of very strict time limitations,’’ said Chief Justice John G. Roberts Jr.

The special court in Washington rejected the state’s request for summary judgment, saying the state Legislature in Texas had used “an improper standard or methodology to determine which districts afford minority voters to elect their preferred candidates of choice.’’

The special court in Washington plans to hold a trial this month and may issue a final decision in perhaps a month. There appeared to be some sentiment on the Supreme Court to allow it to complete its work before the justices rule.

In a separate matter yesterday, several conservative members of the Supreme Court criticized the Environmental Protection Agency for heavy-handed enforcement of rules affecting homeowners after the government told an Idaho couple they cannot challenge an order declaring their future home site a “protected wetlands.’’

Justice Antonin Scalia assailed the “highhandedness’’ of the environmental agency when dealing with private property, and Justice Samuel Alito described some of the EPA’s actions as “outrageous,’’ arguing that most people would say “this kind of thing can’t happen in the United States.’’


The EPA said that Mike and Chantell Sackett illegally filled in most of their 0.63-acre lot with dirt and rocks in preparation for building a home. The agency said the property is a wetlands that cannot be disturbed without a permit. The Sacketts had none.

The couple, who attended the Supreme Court arguments, said they had no reason to suspect there were wetlands on their property. They paid $23,000 for their property in 2005 and decided two years later to build a three-bedroom home. Workers filled in just under a half-acre of land.

Three EPA officials showed up, said they believed the land was wetlands, asked to be shown a permit, and told the workers to stop. Six months later, the EPA sent the order that triggered the court case. The Sacketts wanted to challenge that order, but lower courts have said that they cannot.

The EPA issues nearly 3,000 compliance orders a year that call on alleged violators of environmental laws to stop what they are doing and repair the harm they have caused. Major business groups, homebuilders, road builders, and agricultural interests all have joined the Sacketts in urging the court to make it easier to contest EPA compliance orders issued under several environmental laws.

Justice Anthony Kennedy wondered how far the Supreme Court should go in a ruling, noting that government agencies often threaten citations when people don’t comply with the law. “Health inspectors go into restaurants all the time and say: ‘Unless you fix this, I’m going to give you a citation.’ Fire inspectors, the same thing,’’ he said.

Material from the Associated Press was included in this report.