Cheer Up, Rick Perry: You Won One at the Supreme Court

While demonstrators briefly occupy the Court's front steps, the Justices themselves play nice, awarding a big Voting Rights Act win to Texas and the Republican Party.


It's annoying when Supreme Court Justices refuse to fight among themselves. A nice judicial slapfest makes good copy; beyond that, dueling opinions give hints as to how future cases will come out. Unanimous opinions usual result from making nice, compromising, and parsing the law carefully. BO-ring!

The decision Friday in Perry v. Perez provides no Supreme Court drama -- though the results for Texas politics will likely be dramatic, flipping as many as four House seats from "likely Democratic" to "likely Republican." But the legal issue apparently struck the Justices as easy. They decided it in a "per curiam" unsigned opinion. (Justice Clarence Thomas concurred specially.) Anyone looking for conflict Friday would have had to look outside, as an "Occupy the Supreme Court" rally protesting Citizens United v. Federal Election Commission led to about a dozen arrests.  

Legal haruspices will scan the guts of the case for predictions about where the Court will go when larger Voting Rights Act (VRA) cases reach it, as they will soon. But after today, we know not much more than we already knew -- § 5, the Act's "preclearance" section -- is in trouble with a significant number of the Justices. Whether that number is four or not, it's not less than four.

The issue in Perry essentially was whether a District Court should assume that a "covered jurisdiction" is up to no good and treat new election procedures it creates as deeply suspect.  To understand what that means, understand that the VRA has two major sections -- § 2, which covers the entire country and forbids racial discrimination in elections and voting, and § 5, which covers only states or counties that have a documented history of systematic racial discrimination at the polls. The latter -- nine states, and some counties and towns in other states -- are called "covered jurisdictions." Under § 5, a covered jurisdiction can't change anything about its election system -- not voter qualifications, not voting procedures, not legislative districts -- without "preclearance." Preclearance comes either from the U.S. Justice Department or from the District Court for the District of Columbia.

After the 2012 census, Texas redrew its districting map. It had to, under the Constitution: the new figures gave it four new seats in the U.S. House, and population shifts had made its state legislative districts unequal. The Texas Legislature is controlled by Republicans, and, not surprisingly, the legislative map they drew looks likely to produce increased Republican representation in both houses of the Legislature, and in the U.S. House. (Attention, prospective abusive commenters: back away from the mouse. I know Democrats do the same thing when they have control.) Texas then refused to seek Justice Department preclearance. It went into court instead and asked for an immediate ruling. DOJ opposed that motion. The Court refused to grant summary judgment for Texas, deciding that there were some § 2 issues that needed more examination.

Meanwhile, private plaintiffs in Texas sued in federal District Court there, alleging that the new map violates § 2 by, among other things, breaking up Latino population centers so that there might not be any new Latino-majority districts -- even though Latinos account for almost all the state's robust population growth. The Texas District judge is not allowed to decide those claims until the preclearance issue is settled in Washington. But a new map had to be drawn; and the VRA states clearly that in a covered jurisdiction, no new election procedure can take place "unless and until" it has been precleared.

So the District Court threw out the new map and drew its own, based on "neutral principles that advance the interest of the collective public good." It explicitly did not presume that the state's new map was a good starting place. That, it reasoned, would be giving effect to an election change that had not been precleared.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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