In an advisory filed this afternoon, the Justice Department told the San Antonio court that it opposed any effort to shorten requirements in the MOVE Act that require that mail ballots for military personnel be sent out 45 days in advance of a primary.
At Friday's hearing, lawyers for the State of Texas said that the period could be shortened to 25 days and said that use of electronic ballots might ease concerns.
At least some election officials also agreed with the DOJ in testimony Friday, explaining that the electronic ballots in question were emailed to voters and that they did not have email addresses for all military personnel requesting mail ballots. They also explained that the ballots still needed to be printed out and returned by mail.
Today's hearing is difficult to write about because it was all over the place - jumping from discussions about the meaning the Supreme Court's ruling to the nitty gritty of holding city elections to talk about party rules.
The one thing that was mostly absent, however, was a lot of abstract discussion about things like state sovereignty. Today was a day for practical considerations.
At the end of the day, the consensus was there really weren't a lot of good choices.
So where do things stand?
The Date of the Primary
If there one thing that everyone seemed to agree on, it was that there should be a unified primary. However, they disagree on when.
In general, four options emerged - all of which have drawbacks.
The first would be an April primary. Democratic and Republican party lawyers, however, agreed that this was only feasible if maps could be done by mid-February and even then there is a substantial likelihood that the primary would need to be pushed to April 17. Testimony from election officials, moreover, raised questions about whether even an April 17 date was feasible if extensive changes were made to the maps. An April primary date also would require some adjustment to address military ballots since it will be hard to have ballots ready to be mailed 45 days before the primary as required under federal law.
Other dates proposed were May 29 or June 26.
A May 29 date, however, might require a shortening of the early voting period since municipal elections are May 12 and there might not be enough time to reprogram electronic voting machines.
In addition, if party conventions are not moved, a May 29 date would sharply compress the sequence of events leading to the party conventions. Chad Dunn, lawyer for the Texas Democratic Party, told the court that it essentially would require parties to perform the 'hat trick' of having precinct conventions the night of May 29, county and senate district conventions on Saturday, June 2, and their state conventions the following weekend, as currently scheduled. That possibility has already raised howls from party activists in both parties.
A late May date also would almost certainly assure that the Republican nomination for president would be locked up before Texans have a chance to vote.
A June 26 date also posses issues. For one thing, it is after the date of the parties' state conventions. If the party conventions do not move (something both parties say would be a challenge), then the question becomes how do Republicans select delegates to their national convention. Dunn, the ever helpful Democrat, raised the possibility that delegates could be elected at the early June conventions and pledge to be bound by whatever result came out of the primary later in June. But some think that possibility a little awkward, especially if the Republican presidential contest goes down to the wire.
There's also the logistical issue of how you decide who goes to the state convention. Normally, you are eligible to participate in a parties' precinct convention if you vote in the primary. Do you limit people who can participate to those who voted in 2010? If you open it up, how do you ensure that people who participate in the precinct convention then don't vote in the Democratic primary?
The last option, of course, would be to split the primary. However, the state's lawyers said that no additional money would be available to pay for a split primary. A number of elected officials also are on the record as being adamant that the primary not be split.
At the end of the day, the court did not definitively decide the issue but gave the parties a chance to see whether they could reach an agreement on maps (see below). The court said, however, that if an agreement on maps could not be reached by February 6 (or the issues very significantly narrowed), then it would be impossible to have an April primary.
The other big development of the day (maybe the biggest) was the emergence of serious discussions about a settlement on the maps, with intense negotiations expected to continue this weekend.
David Mattax, the state's lawyer, explained that what the state was proposing was a deal on interim maps, not permanent maps.
Mattax said that under the deal he was trying to work out, if redistricting plaintiffs proposed maps in areas where the state agreed that there were legitimate issues of dispute, the state would not object. Mattax conceded, though, that other parties (such as Congressman Barton) might object. Mattax also recognized that complete agreement with redistricting plaintiffs might not be possible. But Mattax said he hoped to at least be able to narrow the issues for the court before February 6 in an effort to facilitate getting maps by mid-February.
If this sounds like a significant sea change from the state's prior position, it certainly seems to be. And at least some reports are that Republicans are willing to make significant concessions.
Drawing new maps
If the parties are not able to agree on interim maps, or substantially narrow issues, the court did not indicate when it expected to be able to complete maps.
However, the judges repeatedly raised questions about how they would be able to draw maps quickly in that instance, with Judge Rodriguez noting that they hadn't even yet received the record and transcript from the D.C. case.
There also were questions about whether to wait for a ruling in the preclearance case from the D.C. court. In middle of the hearing, the court took a recess to call the D.C. court to discuss timing with Judge Collyer, though the judges were mum about what they learned.
While the state said it thought the court could move quickly, plaintiffs disagreed noting that the record in the D.C. case was different than in the case tried before the San Antonio court. They also said they thought the burden imposed by the Supreme Court's ruling was more complicated than the state suggested. That position was supported, in part, by lawyers for Joe Barton who argued that the court would benefit from evidence about section 5 issues before making any significant changes to the map.
Last but not least (and maybe an anticlimax), but the court also directed that the February 1 filing deadline, February 3 ballot order draw, and all other deadlines in its December 16 order be suspended until further order of the court.