Already, some Republican strategists are second-guessing the strategy of forcing a drawn-out preclearance trial; so far, actually, the Obama Justice Department has demonstrated surprisingly little hesitance in preclearing GOP maps in the South. And Republicans know any miscalculation that puts their map in jeopardy could be very costly: They are still haunted by memories of the court-drawn Texas congressional map that was in place for 2002, in the brief time before former Majority Leader Tom DeLay had his way with the lines. Even though Texas had become a solidly Republican state at the federal level, Democrats continued to occupy a majority of the state's House seats until 2004.
In the discovery phase of the San Antonio trial, judges have uncovered a tangled web of bombshell e-mails between GOP legislators, staffers, lawyers, and operatives arguing over which plans would raise a red flag with preclearance judges. The unsealed e-mails included plenty of plotting as to how best to draw Latino-heavy districts that would still give Republicans advantages. In a June 10 e-mail to a key Texas GOP legislative staffer, Smith attorney Eric Opiela suggested several options that would "improve CD 23's Hispanic performance while maintaining it as a Republican district." The freshman Republican in that district, Rep. Francisco (Quico) Canseco, won his seat in 2010 with Anglo votes even though most Latinos voted for his Democratic opponent.
Democrats see the e-mails as the smoking gun that proves Republicans' intent to shortchange Latino voters through cunning line-drawing. Decrying the proposed GOP changes to the 23rd District, Perales argues that Republicans "swapped out Latinos who were more likely to vote and swapped in Latinos who are less likely to vote," pointing to changes in El Paso, Eagle Pass, and San Antonio designed to help Canseco. What's more, Perales argues there is a clear "Section 2 violation in Dallas," referring to the GOP's strategy to split the area's Latino voters seven ways. Perales doesn't see her group's lawsuit as a partisan crusade but rather a fight to reflect in Congress that Latinos have accounted for most of the state's recent growth. "It's much more complicated than just R versus D."
If the San Antonio court were to step in and enact its own map to meet the state's election timetable, it would likely use a ready-made plan drawn behind closed doors with technical assistance from the staff of the Texas Legislative Council. "Did [Republicans] draw enough districts for Latinos?" wonders one council staffer who agreed to speak on the condition of anonymity, noting that nearly 90 percent of the state's population growth between 2000 and 2010 was non-Anglo but three of the four new seats would likely elect Anglo Republicans. "The court down here could turn to us, and we'd provide them with the technical aspect of drawing a map."
But what kind of map would judges want to draw? There is some debate in the legal community as to whether the panel could use the Perry-signed plan as a starting point: Some argue that the court would simply make a few "easy fixes" to the Perry-signed map based on its findings; others say they would not take the Perry-signed plan into account because it would not yet be precleared by the D.C. court. Last week, the three-judge panel dismissed a Republican motion to postpone the San Antonio trial until the D.C. court could rule on preclearance.
In 2001, when the divided state Legislature deadlocked, a three-judge panel in Tyler, Texas, prioritized incumbency and protected the state's 17 Democrats and 13 Republicans, awarding Republicans the state's two new seats as a consolation prize. This time, even if the judges in San Antonio were to draw a plan to protect as many existing districts as possible to enhance the state's seniority, they could still decide to draw as many as all four of the state's new seats for Democrats, considering the state's lopsided 23-9 Republican edge. No one claims to know what the court would have ready in its back pocket, but there are many guesses.
The three-judge panel in San Antonio is made up of one Democratic appointee and two GOP appointees. U.S. District Judge Orlando Garcia is a former Democratic state legislator who was appointed to the bench by President Clinton. U.S. Circuit Judge Jerry Smith was active in Republican campaign politics before President Reagan appointed him to his perch. The swing vote on the panel is presumed to be U.S. District Judge Xavier Rodriguez, an appointee of President George W. Bush who once lost a GOP primary for Texas Supreme Court to a more conservative candidate and is seen as a moderate.
"Our lawyers feel good about the three-judge panel in San Antonio," says the high-ranking GOP legislator, noting that one possible remedy might be for the three-judge panel to simply draw an additional Latino-heavy seat in Dallas-Fort Worth but leave the rest of the map largely intact. However, if wholesale revisions to the map are made, here are the changes that Republicans most fear, in order of most likely to least likely: