Moot Court: Travis County, et al., v. Perry


Despite a 9 a.m. start time, attendance was high at last Friday’s moot court presented by the Supreme Court Advocacy Project and co-sponsored by Dean Kagan, The Federalist Society and the American Constitution Society (ACS). The case, Travis County, et al. v. Perry, asks whether a 2003 congressional redistricting by the Texas state legislature constituted an unconstitutional partisan gerrymander. The moot court, presided over by a tripartite panel consisting of HLS Professors Martha Field, Charles Fried and Frank Michelman, heard oral arguments from the Hon. Ted Cruz, Solicitor General of Texas and counsel for Gov. Rick Perry and the State of Texas as appellees.

The case, just scheduled for oral argument before the Supreme Court, is the product of a contentious history. After the 2000 Census, Texas received two new congressional districts. The legislature was unable to reach a consensus on a new district map, and the dispute ended with a three-judge federal panel redrawing the lines-essentially leaving intact a map that Republicans thought overly favored the Democrats.

In 2003, after gaining control of the Texas legislature (in part due to the efforts of Rep. Tom Delay, who has since been indicted on charges relating to the 2003 redistricting), the Republicans redrew the 2001 district maps. In modifying the district map in 2003, the legislature broke with the longstanding tradition of updating maps only decennially, after the results of the national census. With the new map in place, the Republicans gained six congressional seats. The plaintiff/appellants (the Democrats and a number of minority groups) contend among other things that the 2003 mid-decade redistricting was improperly motivated by partisan interests and violated the Voting Rights Act by eliminating certain minority-controlled districts.

Conversely, the State, which prevailed at the district court level, has three broad contentions. First, it asserts that the mid-decade timing of the redistricting was not itself sufficient to invalidate the map. Secondly, appellees contend that a ruling for appellants would essentially assert the primacy of judicial district maps over maps drawn by the legislature, an inversion of the Constitution and decades of Court precedent. Finally, the State contends that the Voting Rights Act protects minority voting rights, not parties, and that the redistricting actually created additional minority opportunity districts.

After Mr. Cruz finished his oral argument, the panel gave helpful feedback. Commentary ranged from nuanced matters of etiquette – for instance, the suggestion that the lawyers not identify opinions with specific judges when possible – to more substantive feedback on argument emphasis and tactics. At this point, parties following the case are reluctant to make predictions. It is clear, however, that whatever conclusion the Court reaches will have far-reaching effects not only for Texas but for the rest of the country as well.

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