Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court's own preferences.
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.
Wrong, said nine Justices Friday:
The court, in fact, should use the state's plan in any area where there has been no substantial § 2 challenge, the Court held. In essence, under this rule, challengers have to show something wrong with any feature of the state plan; if they can't, the court will use that feature.
Covered jurisdictions are covered precisely because they once were the worst of the worst -- states and counties where government systematically, intentionally, and successfully reserved the vote for whites only. Section 5 seemed to embody a command that courts should presume a covered jurisdiction was guilty until proven innocent. But many people think that those days -- which were within my adult lifetime -- are long gone, and that state's rights and sovereignty are more valid interests than they were during Jim Crow. The result is a subtle change in the house rules. Tie used to pay the player, or at least some judges thought it did. Now tie pays the house.
If the challengers later end up winning in court on points that the District Court thought was substantial, they can be changed then -- after preclearance is done and the § 2 suit is resolved. That, of course, could be many months or years away, and in the interim, new legislators and members of Congress will have won election and be on the job, serving their new districts and their party.
The opinion is gentle in tone. At oral argument, Chief Justice John Roberts had waxed wroth at the implication in the District Court's order that it might have drawn at least one district as a "minority coalition opportunity district," meaning a district where two minority groups might form a majority and elect a legislature sympathetic to both. The opinion doesn't say the lower court did that, but it warns that "[i]f the District Court did set out to create a minority coalition district, rather than drawing a district that simply reflected population growth, it had no basis for doing so." The opinion also repeats, but does not heighten, the language in an earlier case, Northwest Austin Municipal Utility District Number One v. Holder, that it may be time for Congress to quit treating some states and counties differently from others just because they discriminated Back in the Day. "This Court recently noted the 'serious constitutional questions' raised by § 5's intrusion on state sovereignty," it says.
Time enough to adjudge that issue when the constitutionality of § 5 is squarely presented. That time may come soon, as a direct challenge to § 5, brought by Shelby County, Alabama, was argued in the Court of Appeals for the District of Columbia just last week. However that court decides, the issue will be squarely teed up by that decision. The Court will almost certainly take the case.
Until then, we don't know a lot that we didn't know before about the state of § 5. Boringly enough, the Justices are getting along for now.