The Texas Capitol in Austin (Associated Press )
Reporting from Washington — The Supreme Court justices waded into an election-year political dispute from Texas, signaling they favor drawing the state's 36 congressional districts based largely on the plan adopted by its Republican-controlled Legislature.
The court's leading conservatives said they were skeptical of allowing judges in San Antonio to put into effect their own statewide map that creates districts geared to electing Latinos.
Texas has been put "at a tremendous disadvantage," said Justice Anthony M. Kennedy, because the judges largely ignored the wishes of the Legislature. As a remedy, the justices suggested they would fashion a ruling that deferred mostly, but not entirely, to the election maps drawn by the state's lawmakers.
The Texas case involves both state politics and minority voting rights in an era when the Latino population is growing rapidly. It is also a test of whether judges or elected lawmakers should be trusted to draw election districts.
The outcome could determine whether Republicans or Democrats pick up as many as four seats in the House of Representatives in the November election. Because of a population surge of more than 4 million, Texas will see its congressional delegation increase from 32 to 36.
But it is not clear whether those new districts will favor Republicans or Latinos and Democrats. The answer depends on how the districts are drawn.
Last summer, the Republican-controlled Legislature redrew the statewide electoral map in a way that favored Republicans to win those seats. Political analysts estimate that Texas Republicans would hold a 26-10 advantage over Democrats in the next Congress under this plan.
But advocates for Latinos went to court in San Antonio in the fall, arguing the state's plan violated the Votings Rights Act. They said it discriminated against Latinos and denied them a fair chance to elect representatives of their choice. They argued that because Latinos and blacks were responsible for most of the population growth, the state should be required to draw new districts that favor minority candidates.
Their claim was bolstered in November when a three-judge court in Washington refused to approve the new Texas map under a separate provision of the Voting Rights Act. Those judges said they would hold a trial in February to decide whether the state's plan denied Latinos their rights to a fair share of political power.
The federal judges in San Antonio, noting the ticking of the election-year clock, drew their own interim map for use in the 2012 election. Under their plan, adopted in a 2-1 decision, Latinos probably would be able to elect three or four new members of Congress.
Last month, the Supreme Court voted to hear an emergency appeal of that plan from Texas state officials. "It is judicial activism at its worst for judges to draw the redistricting map of their own choosing," said Texas Atty. Gen. Greg Abbott.
During Monday's argument, former Solicitor Gen. Paul D. Clement, representing Texas, said the state Legislature's plan should be "the starting point" for how to proceed. Most of the justices sounded as if they agreed.
Kennedy faulted the judges in San Antonio and said they acted as though the state's plan had been declared unconstitutional. They did not give "effect to the legislative judgment" on how the districts should be drawn, he said.
Justices Antonin Scalia and Samuel A. Alito Jr. said the drawing of election districts is a political process, and the judges should have deferred to the elected politicians. Chief Justice John G. Roberts Jr. questioned their drawing of a "minority coalition district" in the Dallas area.
Not all the justices were on the side of Texas.
Justice Sonia Sotomayor said there was evidence that Texas lawmakers drew district lines to "minimize the Latino vote." She pointed to "an antler-type district" in El Paso. It has "a head and two antlers, nothing tying them together," she said. The San Antonio-based judges redrew the district in a way that did not divide up the Latino vote, she said.
Until now, Section 5 of the Voting Rights Act has been understood to bar Southern states from using new statewide election maps until they have been cleared in Washington by the Justice Department or a three-judge panel.
At one point, Scalia said Section 5 did not set an "absolute rule" forbidding states like Texas from going ahead, at least temporarily, with their own election plans. If a majority were to agree, that would be a significant change in the law. But none of the other justices picked up on Scalia's comment. The chief justice said at one point the court did not want to rule broadly on Section 5.
Instead, the justices suggested they would fashion a ruling that would allow the election to go forward in Texas this year, and under state lines that mostly followed those set by the Legislature.