At different stages of the Texas litigation, the three judge panel has negatively commented and alluded that Texas utilized the statutory and primary method of preclearance in the Voting Rights Act – judicial preclearance – as a way to delay disposition of the issues. 

Based on those comments, it also appears the panel improperly considered the fact that Texas chose the judicial route of preclearance as a reason not to provide any deference to the duly enacted legislative plan.  Texas quickly picked up on the negative attitude coming from two of the three judges on the panel who had hoped they could hide their activist line-drawing behind some Section 5 administrative finding by DOJ.  The panel has not wanted to make detailed findings to serve as the basis for the interim lines as that would certainly draw the scrutiny of the Supreme Court.

In its reply brief, Paul Clement points out that if their legislative plan is provided no deference, than the intrusion on state sovereignty worked by Section 5 is remarkable indeed.

the reply brief continues:  If the consequence of delayed judicial preclearance is that the jurisdiction seeking preclearance is treated no differently from a recalcitrant jurisdiction – and, in turn, its duty enacted map is given no deference – then opponents of a legislative plan would have to be angels not to intervene and then delay the section 5 proceeding.  Indeed, the incentive for delay combined with a greater respect given to jurisdictions that seek administrative preclearance would all but eliminate the statutory option of judicial preclearance as a practical matter.

The Supreme Court has a perfect chance to quickly knock that improper bias down by smacking the three judge panel for its impertinent comments and lack of deference. If you act like a 9th Circuit panel, you be will treated like one.