Primaries Underway, Supreme Court Expedites Texas Redistricting Case

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An abstruse question about judicial standards may reveal the Court's fault lines on America's most important election statute.

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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.

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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, and is the author of American Epic: Reading the U.S. Constitution.

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