An abstruse question about judicial standards may reveal the Court's fault lines on America's most important election statute.
Many commentators have noted that the Supreme Court's current term brings up some serious federalism questions. It's more and more clear that this political year is liable to involve the court in voting and politics to an uncomfortable degree.
Perry v. Perez and its companion cases, argued Monday on an emergency basis, raise a highly technical question -- what standard should a District Court use to fashion an "interim" legislative districting map while the state's proposed map awaits "preclearance" under § 5 of the Voting Rights Act?
Narrow and abstruse? Yes. But the answer could determine which party wins as many as four House seats from Texas this November.
The VRA is one of the bedrocks of the American voting system. Passed originally in the aftermath of the March at Selma, it aims to keep federal and state elections free of racial and ethnic discrimination.The Act's § 2 covers not only the issuance of ballots to individual voters but drawing of districts and the conduct of voting.
But for a number of states, the act imposes an additional hurdle. In 1975, Congress found that Texas had used a number of tricks over the years to frustrate the political opportunities of Latino and African-American voters. That made Texas a "covered jurisdiction." It can't implement any change in voting procedures or districts unless it receives "preclearance." Either a federal court or the U.S. Department of Justice can decide in advance whether the change has the purpose or effect of restricting minority voters or "diluting" their voting power --for instance, by breaking up minority communities to ensure that they don't have a majority in any one district.
"Unless and until" precleared, the statute says, the change may not take effect. In the majority of cases, that just means the old system remains in place. But that won't work in redistricting cases, particularly in a year ending in 2. The Census every 10 years produces new population figures; those figures must be the basis of new Congressional and legislative districts in the next off-year election. All those districts -- not only for the House but for state legislatures and other elected state bodies -- must be roughly equal in population (the principle of "one person one vote.")
In 2010, Texas scored major population growth, enough to gain the state four new House districts. The legislature, dominated by Republicans, began the tortuous, highly politicized process of redrawing every congressional and legislative district in the state. This process was complete by spring; after considering the plans for a few weeks, Texas Governor Rick Perry signed them. By a bizarre coincidence, the state's enacted plan actually reduced the number of minority "ability to elect" districts, which lean Democratic -- even though most of the state's population growth was among Latinos.
The state didn't submit the plan to the Justice Department (which is required to respond within 60 days). Instead, it asked (as the statute allows) the U.S. District Court for the District of Columbia to "preclear" the plan, a more time-consuming process. Meanwhile, private plaintiffs back in Texas brought suit against the new plan, asking a court to rule that it did violate § 2 of the VRA -- that it intentionally discriminated by race. A federal court usually won't make such a ruling until "preclearance" is complete.
But the three-judge District Court now had a problem. Primary elections in Texas are approaching. What districting plan could Texas use? It can't use the old plan -- there aren't enough congressional districts, for one thing, and the old legislative districts are no longer roughly equal in population. But, it reasoned, it also can't use the new Texas plan -- the VRA clearly says no such plan can take effect "unless and until" it is "precleared." So the court devised its own plan, one that it assessed as not diluting minority strength and roughly equalizing districts. That plan is likely to produce more Democratic victors than is the Texas plan.
Texas rushed to the Supreme Court to enjoin the district court plan. Texas wants the Supreme Court to allow the new Texas plan to go forward. A court owes "deference" to the legislature, it argues. If not, § 5 involves intrusions on Texas's "state sovereignty." The government and the plaintiffs base their arguments on the language of the statute. Preclearance is required; presumptions of deference are specifically reversed in this context. To allow Texas to use its uncleared plan, they suggest, would reward the state for protracting the preclearance process.
The case has to be decided in a hurry -- probably by the end of the month -- to allow Texas to print ballots and hold its primaries on schedule. Court watchers not only want to know what plan Texas will use but how the Court is feeling about § 5. In a 2009 case called Northwest Austin Municipal Utility District Number One v. Holder, the Court refused to reach that big question. But, writing for eight Justices, Chief Justice Roberts warned that "the Act's preclearance requirements and its coverage formula raise serious constitutional questions."
This brings us to Monday. During the argument on the case, Chief Justice Roberts asked one lawyer, "The constitutionality of the Voting Rights Act is not at issue here, right?" It was not a question. But § 5 is plainly on at least one important mind -- Justice Anthony Kennedy, who suggested that this whole sorry business would be a lot easier if the court below were hearing only the discrimination claim under § 2 without all this preclearance nonsense.
Texas was represented by conservative superlawyer Paul Clement, who is adept at contests in which five votes is the winning number. He argued that even using Texas's plan before preclearance would not violate the statute. "There's not interference with § 5," he said, "because Texas still understands it needs to get preclearance -- before its changes can take permanent effect, it absolutely positively needs preclearance.
The private plaintiffs were represented by Jose Garza of the League of United Latin American Citizens, who did the near-impossible -- standing up to the Chief Justice when he went into one of his trademark word-nerd rants. The District Court, Roberts charged, had veered into social policy by drawing "minority coalition opportunity" districts, where two racial groups working together might be able to elect the candidate of their choice. That goes beyond what the Court has held the VRA requires. And yet the District Court noted that one of the legislative districts it had drawn was "drawn as an opportunity district." Garza responded that in context, the language showed that the court had drawn the new district by other principles -- population, city boundaries, etc. -- and that during that process the district had emerged "as an opportunity district." The Chief Justice, who loves to parse grammar, tried to silence him. "I don't see how that can be read any other way!" he said, face reddening.
"Of course it can be read differently than Your Honor's interpretation of this," said Garza calmly. Justice Stephen G. Breyer rushed in to agree with him. Garza may not have won that point, but he did stop the Chief before he went into a full Merriam-Webster. Like turning Justice Alito's frown upside down, that in itself is no small accomplishment.
The federal government, which argued that the Texas plan deserved no deference but that the District Court plan was flawed, was represented by Deputy Solicitor General Sri Srinavasan. "The fundamental flaw with Texas's approach is that it directly inverts the burden established by the Voting Rights Act," he told the Court. Section 5 says that in this context, the burden should be on the state.
The latter point may offer the Court a way out of the case. All three attorneys agreed that the Court could remand the case to the District Court with instructions to use the state's plan as a basis for a new map -- but without deference to the state, in fact, with the burden of proof on Texas to show the each aspect of the plan does not violate § 2. This seems to be Justice Kennedy's preference -- and Justice Kennedy's preferences have a certain whiff of law.
If Texas does not bear that burden as to any part, the District Court could redraw that part. That might require another delay in the Texas primary; but Texas has the earliest congressional and legislative primaries in the country, and there is time to reschedule. In the meantime, the D.C. District Court might resolve the preclearance question, simplifying everybody's life.
Whether the Court takes that route may tell us a lot about what its members have in mind to do when § 5--and with it, the future of minority participation in American politics -- are squarely before it at last.