“We are all under the gun of very strict time limitations,” said Chief Justice John G. Roberts Jr. Primary elections in Texas have already been moved back to April, and the court must act very quickly to avoid further delays.
As for possible rulings, the chief justice said, the court was confronted with “two wrong choices.”
The justices in essence must choose between two sets of electoral maps, or at least tell lower courts how to do so. The maps concern the two houses of the Texas Legislature and the House of Representatives.
One set of maps was drawn by the Legislature, which is controlled by Republicans. Those maps seem to favor Republican candidates. The other set was drawn by a special three-judge federal court in San Antonio, and it increases the voting power of Hispanic voters and seems to help Democratic candidates.
As many as four House seats hang in the balance, experts in election administration say.
The legal question for the justices was how to treat maps drawn by legislatures in states with a history of discrimination. Under Section 5 of the Voting Rights Act of 1965, changes in voting procedures in such states cannot take effect until they have been approved by either the Justice Department or a special three-judge court in Washington.
Texas sought approval from the special Washington court, but it has not yet received an answer, though the special court has indicated that it is unlikely to approve at least some of the Legislature’s map. Because there were no approved maps as the first primaries in Texas loomed, the San Antonio court, which was hearing challenges to the Legislature’s maps under a different part of the Voting Rights Act, drew the competing set of maps.
Officials in Texas asked the Supreme Court to block those judge-drawn maps, saying they did not give enough deference to the Legislature. Paul D. Clement, a lawyer representing Texas, told the justices on Monday that the San Antonio court should have used the legislative map as a starting point while the approval process was pending.
Justice Sonia Sotomayor said that would turn Section 5 on its head. Justice Antonin Scalia, on the other hand, appeared inclined to allow Texas to use its Legislature’s maps until a court ruled that they were invalid.
Chief Justice Roberts seemed to say that both of his colleagues had a point.
“You cannot assume that the Legislature’s plan should be treated as if it were precleared,” he said.
“But on the other hand,” he went on, the San Antonio court “can’t draw its interim plan assuming that there are going to be these Section 5 violations.”
The case is a result of a population boom in Texas, which gained more than four million people in the last decade, about 65 percent of them Hispanic. The growth entitled the state to four additional Congressional seats.
Justice Anthony M. Kennedy mused that the procedures created by Section 5, which upend the usual presumption that a duly enacted state law is valid, may no longer make sense.
“Section 5 applies only to some states and not others,” he said. “Texas is at a tremendous disadvantage here.”
The court ducked that issue in a 2009 decision but indicated that it might soon return to it and strike down the provision.
“There’s a terrible history of discrimination in Texas,” said Jose Garza, a lawyer representing challengers to the legislative map.
Chief Justice Roberts interrupted him. “The constitutionality of the Voting Rights Act is not at issue here, right?” he asked. Mr. Garza agreed.
The question, instead, was what to do given that the special court in Washington has neither approved nor disapproved the Legislature’s maps. It did, however, reject Texas’s request for summary approval of its maps, saying the state had used “an improper standard or methodology to determine which districts afford minority voters to elect their preferred candidates of choice.”
The case before the special court in Washington is scheduled to be tried this month, and that court may issue a final decision in early February.
But for the press of time, there appeared to be some sentiment on the Supreme Court to allow the special court in Washington to complete its work before the justices ruled. But for primaries to proceed in April, Mr. Clement said, Texas needs to know which maps to use by Feb. 1.
The three cases before the Supreme Court justices were Perry v. Perez, No 11-713, on the Texas House, Perry v. Davis, No. 11-714, on redistricting the State Senate, and Perry v. Perez, No. 11-715, on the House of Representatives.