Editor's Note :

Editor's Note :

At 9:30 a.m. on Monday we expect additional orders from the Court's November 25 Conference. On Tuesday, December 2, we expect one or more opinions in argued cases; we will begin live blogging at this link shortly before 10:00 a.m.

Aaron Tang .

Posted Tue, January 3rd, 2012 9:03 am

The Texas redistricting cases

The Court will kick off its  January sitting next Monday by hearing oral argument in the Texas redistricting cases.  The cases concern the new districting maps enacted by the Texas legislature last year in the aftermath of the 2010 census, which saw the state obtain four additional seats in the House.  After the state commenced the pre-clearance process regarding those maps pursuant to Section 5 of the Voting Rights Act, several groups sued in a Texas federal district court to block the maps from being used in the 2012 election cycle.  That court granted an interim order blocking the legislatively enacted maps, replacing them with maps of its own.  Our discussion topics this week will focus on how the Court should respond, how it likely will respond, and the Voting Rights Act more generally.


  • Aaron Tang – 0 Promoted Comments

    How do you think the Court should rule in the Texas Redistricting cases (and why)? Should it vacate the district court’s interim plan and impose the legislatively drawn map? Should it remand to the district court with additional instructions and the hope that there is sufficient time to adopt a different interim plan? Should it approve the district court’s interim plan altogether? Or should it issue some other order?

    • Nick Dranias – 2 Promoted Comments

      Although the appellate work in the Texas Redistricting cases has been carefully crafted to avoid mounting a sweeping constitutional challenge to Section 5 preclearance, much less to the VRA itself, the Texas Redistricting cases nevertheless present a fantastic opportunity for the Court to resolve critically important and longstanding disputes over the Elections Clause, the 14th Amendment and the 15th Amendment. Hopefully, the Court will not only vacate the district court’s interim plan and allow the legislatively drawn redistricting map to go into effect, but it will do so by vindicating first principles. In particular, the Court should rule that it is fundamentally inconsistent with our Constitution’s vertical and horizontal separation of powers to allow any judge to engage in the wholesale redrawing of a legislative map as a form of interim equitable relief. In doing so, the Court should embrace the thrust of Justice Rehnquist’s dissent from the denial of certiorari in Colorado General Assembly v. Salazar (2004), with which Justices Scalia and Thomas concurred, and aspects of his concurrence in Bush v. Gore (2000), also with which Justices Scalia and Thomas concurred. In both cases, Justice Rehnquist emphasized that the Elections Clause confirms the primacy of state legislative power over time, manner and place election procedures—not state or federal judicial power over such matters. Although Congress has a proper regulatory role in Elections Clause matters, separation of powers doctrine and principles of state sovereignty preclude Congress from delegating to any federal judge the duty to perform the quintessentially local political and legislative decision-making that is inherent in drawing redistricting maps. Finally, although Congress has an appropriate enforcement power under the 14th and 15th Amendments, the district court improperly shifted the burden of proof to the State of Texas in defending its redistricting map, which was drawn legislatively based on traditional race-neutral criteria. Strict scrutiny should have required the district court and those who object to the legislatively drawn map to show that their racialist redistricting preferences were narrowly tailored to a compelling governmental interest, which they did not attempt to show.

      • roxanne friedman – 4 Promoted Comments

        Of course Rehnquist would take that position. It was as leader of Republican “ballot security”, i.e. minority voter intimidation, activities in Arizona that he came to the attention of Nixon insiders.
        The Texas three-judge court is composed of two hispanic district judges well schooled in Texas bare-knuckle politics, Xavier Rodriguez (GHW Bush) and Orlando Garcia (Clinton), and Circuit Judge Jerry Smith. Smith, whose vocal dissents from every ruling made by the court probably attracted the attention of the Supreme Court in the first place, is a Reagan appointee and author of the Hopgood opinion forbidding affirmative action at the University of Texas Law School. That the drawing of a judicial map, the need for which is supported by precedent and the process of which is fully described in the decision, would be subject to expedited review, despite the Court’s repeated refusals to engage in pre-election review of voting changes, reeks of the complaints of Proposition 8 proponents against Judge Walker.
        It should be noted that Texas made no effort to comply with the one person-one vote mandate of Baker v. Carr. Rather, it first determined that maximum disparity it thought it could get away with and then manipulated district boundaries to maximize Anglo Republican political control. Now when it reaps the consequences of these decisions, it responds with ever more brazen challenges to the legal regime created to deter its ongoing discrimination. Its single complaint about the interim map, that it fails to consider state requirements that county boundaries be respected, has long been rejected as a matter of both Voting Rights Act and constitutional (Gray v. Sanders) law.
        There is no new issue presented by this case. The question is whether the formalism of states’ “dignitary interests” and de jure race neutrality will overcome the reality of historical disenfranchisement and current race/nationality-based gerrymandering.

        • Elaine Snow – 0 Promoted Comments

          Excellent points, all, but I can’t believe this current court will do anything but, per usual 5-4 decision, uphold the redistricting plan. This of course will bring further suspicion on an unelected governmental branch that has done absolutely everything to “justify” its reputation as activist jurists. How sad it is that we can no longer expect a fair & impartial decision from the D.C. Nine.

    • Justin Levitt – 2 Promoted Comments

      Every day at the Court is another day’s misery for election administrators, who have an election to prepare for without districts (or candidates) to make preparation possible. Since the Court does not historically do its finest work at a dead sprint, it should (and won’t) dismiss as improvidently granted. Second best, it should expeditiously affirm both the district court’s approach and its discretion.

      As I’m exploring in an upcoming piece, there is no way for the Court to purge the process of potential gamesmanship. Before the San Antonio court drew its maps, there were no lawful lines: existing districts were malapportioned, and the enacted plan had not been precleared. Texas law provides few criteria beyond federal law for state legislative districts, and none for Congress. This vacuum creates bad incentives no matter what the legal regime. If a court must find further guidance in a state’s enacted plan, the state could delay preclearance in order to implement its preferred policy through a different federal court, completely upending the purpose of section 5. If not, opponents could delay in order to deprive the state of a map that could still (theoretically) be lawfully precleared.

      The least of the bad options is to recognize that if section 5 is to have any meaning at all, it must preclude deference to the immediate wishes of a covered jurisdiction in the absence of a preclearance decision. Texas’ legitimate policy interests can still be recognized, albeit imperfectly, by using the benchmark plan as a baseline, updating for population growth and the requirements of section 2 and section 5. This appears to be the San Antonio court’s professed approach, and unless its imperfections are vast, time is too short in this emergency stay from an interim order for the Supreme Court to micromanage the process. The DOJ has offered a promising face-saving solution: approve the lower court’s general approach, and remand for incremental explanation of some of its choices. On the double.

    • Steve Bickerstaff – 1 Promoted Comment

      The latest reply brief from the State of Texas makes clear that it sees the pending redistricting case as a means for challenging the constitutionality of Section 5 of the Voting Rights Act (VRA). The state has now taken the position that the Supreme Court should either order use of the state’s plans in lieu of the lower court’s interim plans, or find Section 5 of the VRA unconstitutional. This argument of unconstitutionality was thinly disguised in the state’s declaratory judgment filing with the DC District Court in July and now has become uncloaked. Beware of what hides behind the curtain!
      Although the redistricting plans adopted by the Texas Legislature in 2011 are highly partisan and effectively minimize Hispanic voting strength in both the state house and congressional districts, the merits of these plans are not before the Supreme Court. The federal court in San Antonio, Texas emphasized that it was not ruling on the validity of the legislative plans under VRA Section 2 or the United States Constitution. The DC District Court has neither heard evidence nor ruled on the VRA Section 5 compliance issues. The questions before the Supreme Court relate only to the appropriateness and merits of the San Antonio Court’s interim plan. The San Antonio Court’s orders or plans will not withstand scrutiny. I do not believe the district court did an adequate job of explaining why it rejected the state’s plans, why it disregarded the state constitution’s mandate (legitimate state policy) about keeping county lines intact in drawing state house districts, or why it felt compelled to adopt an interim plan that essentially seeks to satisfy every plaintiff claim under VRA Sections 2 and 5 without holding any part of the state plans unlawful.
      It was predictable over a year ago that the State of Texas would attempt to bypass the DOJ by going instead to the DC District Court. It also was predictable that the Supreme Court would become involved (probably through a motion to stay) and that the state would use the redistricting case as a vehicle for allowing the Supreme Court to again address the constitutionality of VRA Section 5. Many of the Justices on the Supreme Court have previously expressed their view that VRA Section 5 is unconstitutional. At least two amicus curiae in the Texas case are directly challenging the Section’s constitutionality. The state has in its reply brief sought to raise this same issue. While there probably is no record in this case sufficient to determine the Section’s constitutionality, the circumstances of this case will be urged by Justices on the Court as showing the intrusive nature of Section 5 today and how the Section can be “gamed” so as to effectively deny a covered jurisdiction the right to obtain preclearance timely through the DC Court.
      I believe that a majority of the Supreme Court will use this circumstance, the delay in the DC Court, and the perceived “legislative” intervention of the Texas federal court to further weaken the prophylactic foundation of Section 5. I believe that a majority of the Supreme Court will be unwilling to remand the case to the Texas federal court for modification of the district court’s plan and, instead, will order Texas elections (primary elections or all 2012 state legislative and congressional elections) to proceed on the basis of the plans adopted by the Texas Legislature.

      • Michael Wyatt – 0 Promoted Comments

        I don’t know who “gamed” Section 5 in order to “effectively deny” the State of Texas “the right to obtain preclearance timely through the DC Court.” But I think the reason the State of Texas failed to obtain timely preclearance is that the Republican legislators who utterly dominated the legislature failed to pass a redistricting plan in the regular session, necessitating a called special session in order to take care of this routine matter. Did they not realize before the regular session began that the decennial census would require them to draw the maps? Are they that incompetent? Or did they “game” the system?

    • Nina Perales – 1 Promoted Comment

      The Supreme Court should lift its stay and allow the now-delayed Texas primary elections to proceed under the district court’s maps. The maps drawn by the district court defer to precleared Texas policy by incorporating the State’s legislatively-drawn benchmark redistricting plans and even portions of the unprecleared 2011 maps. The district court should not be forced to adopt wholesale the unprecleared maps that six federal judges to date (three in Texas and three in Washington DC) have concluded cannot be implemented.

    • Texas Attorney General's Office – 1 Promoted Comment

      The Texas Attorney General’s office explains in its U.S. Supreme Court briefs how it believes the high court should rule:

      Today’s brief
      Pg. 3-4: the use of the legislative plan as the interim plan subject to the well-defined preliminary injunction standard is clearly the preferable course and ensures that any judicial consideration of race is both necessary and fully consistent with the Constitution. This Court should “say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than a federal court.” Here, the Texas legislature has faithfully discharged the State’s “duty and responsibility.” Given the exigencies of time and the Texas court’s profound misunderstanding of the governing legal principles, a remand to that court would provide no assurance of a timely and legally appropriate resolution to Texas’s predicament. Accordingly, this Court should order the use of the State’s duly-enacted maps as the interim plans for the 2012 elections, while Texas continues to pursue preclearance before the D.C. court.

      Pg. 37: III. IF THIS COURT REMANDS, IT SHOULD CORRECT THE MOST EGREGIOUS ERRORS IN THE DISTRICT COURT’S INTERIM MAPS
      Given the need for certainty in light of the rapidly approaching (and already delayed) primary elections and the district court’s refusal to find any probable statutory or constitutional violation in the legislative plans, the most appropriate course at this juncture is for this Court to vacate the interim orders and remand with instructions to order the interim use of the State’s legislatively enacted plan while preclearance is pending. See Texas Br. 54–55. Even though Texas has faced a host of claims in two different venues for more than six months, there has been no finding by any court that a single aspect of Texas’ enacted plans is likely to violate federal law. Particularly in light of the district court’s profound misunderstanding of the governing legal standards, an open-ended remand would only result in additional delay, leading to further chaos in the 2012 election cycle.

      Pg. 56: The district court’s interim orders should be vacated, and the case remanded with instructions that the district court order the use of Texas’ legislatively enacted districting maps as the interim plans while preclearance is pending.

      Dec. 21, 2011 brief
      Pg. 31: In light of these exigencies, this Court should vacate the interim orders and remand to the district
      court with instructions to impose Texas’ legislatively enacted map as the interim plan while preclearance
      is pending. Federal courts have authority to authorize the emergency interim use of a State’s legislatively enacted plan without first obtaining preclearance, cf. 28 C.F.R. § 51.18(d), and the Court should exercise that authority here. Nothing in that order would relieve Texas of its undisputed obligation to obtain preclearance before implementing its new maps on a permanent basis.

      Pg. 54: In light of these exigencies, there simply does not appear to be enough time to remand the case and allow the district court to craft yet another batch of interim maps for the upcoming elections.
      Accordingly, this Court should vacate the interim orders and remand to the district court with instructions to impose Texas’ legislatively enacted plan as the interim plan while preclearance is pending.

      Pg. 63: CONCLUSION
      The district court’s interim orders should be vacated, and the case remanded with instructions that the district court order the use of Texas’ legislatively enacted districting maps as the interim plans while preclearance is pending.

      • Kal Renzi – 1 Promoted Comment

        Strictly speaking, the San Antonio Court engaged in extremely dubious policymaking. Their memo that they attached to plan C220 reads like a policy paper where they made numerous political choices. Indeed, the DOJ concedes that the San Antonio Court failed to explain how they drew these districts at random.

        1. TX-23 is redrawn to include fewer Voting Age Hispanics than the state’s map. What they did in Bexar is substitute extremely Republican voting Anglos for slightly less Republican voting Anglos. In addition they added about 13,000 African American voters. Oddly enough, in El Paso County they made the opposite choice; the plan C220 gerrymanders to cherry pick the most conservative Hispanic voters in the County. The end result is that Canseco is probably even money to win the district.

        I should add that numerous maps proposed by the plaintiffs would have put Canseco in an unwinnable district, and even placed his residence outside the district. Thankfully the court did not do that.

        2. TX-25 is redrawn to include the bulk of Travis County and a safe district for Lloyd Doggett, who is of course disliked by Texas Republicans. No finding of fact is made with regards to any legal wrong in the legislature’s proposed 5 way carving of Travis County. Rather, the court decides to arbitrarily do so to the benefit of the plaintiffs. The court also moves TX-10 into Williamson County and combines the residences of 2 Republican incumbents.

        3. TX-33 is redraw to round up all the minorities it can find in Tarrant County. It’s entirely unclear what interest a court has in doing so. In addition, earlier in the court’s opinion they discuss the important redistricting principles of ‘placing new districts in the area of the most growth’. TX-33’s placement explicitly fails this standard; the area of highest growth in the Metroplex is the northern suburbs around Frisco rather than downtown Ft. Worth. In addition, the city of Arlington, which is whole in the current congressional map and the state’s congressional map, is sliced into 3 pieces.

        The court tries to hide by stating that it placed TX-33 in ‘roughly’ the same position as the state’s map, but its a completely different district.

        Looking at all 3 districts, it’s certainly not clear that a Hispanic Democrat can win any of the 3. Which basically puts Hispanic Democrats in essentially the same position as the state map. Plaintiffs and DOJ have conceded that the state’s map includes 7 districts which are likely to elect the Latino candidate of choice, and that’s not counting TX-23, which of course has a majority hispanic CVAP and a majority hispanic SSVR.

        Political gerrymandering is as old as the nation itself and it certainly has a lengthy history in Texas. See Martin Frost, 1991. The Democratic Party in Texas essentially died as a statewide institution in 1994 and yet continued to win a majority of Congressional seats through 2004.

        Simply put, the San Antonio Court map is a transparent attempt to give the Democratic party additional Congressional districts in Texas. The basic legal position articulated by the plaintiffs is that Texas Republicans should not have authority to enact policy in the state in which they dominate the political scene.

        It’s especially rich given how Illinois Democrats drew a map to displace numerous Republican congressional incumbents. It fails to pass the smell test.

  • Josh Douglas – 1 Promoted Comment

    I fail to see how a ruling that implements Texas’s proposed maps as interim maps is anything but an end-run around Section 5. Imagine this scenario: the Court authorizes the use of non-precleared maps for the 2012 election. The D.C. three-judge court then denies preclearance. The Texas legislature adopts new maps during 2013, for which it must obtain preclearance. The D.C. three-judge court holds a trial on these maps, but Texas is allowed to use them as “interim” maps for 2014. The D.C. court denies preclearance, meaning that Texas has to re-draw the maps again…and so on. We could see the perpetual use of non-precleared maps as “interim” maps, without Texas ever having to actually obtain preclearance. In fact, using the interim maps would give states an incentive to drag its feet during the preclearance litigation because it knows it will be able to use its maps in the meantime.

    Moreover, this case is an improper vehicle for the Court to consider the constitutionality of Section 5. The procedure of the Court hearing this case makes it unsuitable for resolution of these important issues. In fact, having direct appeal to the Supreme Court improperly forces the Court’s hand on these important constitutional questions, an issue I’ve written about in a recent article. For these reason (among others), the Court should affirm the San Antonio court’s maps.

    • Jim King – 1 Promoted Comment

      The idea that using the Legislature’s maps would allow a perpetual “end run” around Section 5 (by remapping in each subsequent legislative session) makes no sense. The only reason that the “prior practice” (i.e. the 2010 maps) cannot be used in 2012 is that the 2010 maps are malapportioned. That’s why an “interim” map is required. If the DC court denies pre-clearance, the San Antonio court will continue with its trial and will draw a fully compliant “remedial” map that would take effect for 2014 and become the new benchmark. If the Legislature redraws the lines in 2013, the new pre-clearance process will be a comparison against the benchmark San Antonio maps. If pre-clearance were not achieved sufficiently early to support the 2014 election, then the benchmark maps would be used. There would be no need for “interim” maps since the benchmark maps will not be malapportioned and thus, no need to give effect to the state’s 2013 maps prior to pre-clearance. Far from a perpetual “end run”, using the state’s maps now only ensures that they get used for a single election pending the outcome of the San Antonio trial (and subsequent appeals).

  • Randolph McLaughlin – 2 Promoted Comments

    The Texas Redistricting cases are the latest iteration in a long and sordid history of voting rights violations by the great state of Texas. Every ten years a plethora of cases move through the federal courts regarding redistricting and reapportionment. The bulk of these cases involve jurisdictions that are covered by the preclearance provisions of Section 5 of the Voting Rights Act. In addition to the southern states several northern jurisdictions are also subject to preclearance, i.e. New York, Bronx and Kings(Brooklyn) counties. Section 5 provides two alternative routes for preclearance. Submission by the covered jurisdiction of the proposed change to the Department of Justice’s Voting Section or the commencement of a suit in the United States District Court for the District of Columbia. In the present case pending before the Supreme Court, Texas chose the later route, permits fearing a negative result in the Department of Justice. Unfortunately, the litigation route is time-consuming and fraught with delay. In this instance part of the delay was caused by the litigation strategy used by Texas. Instead of proceeding expeditiously to trial, they chose to file a motion for summary judgment in the District of Columbia case. Given the complexity and factually intensive inquiry required in a Section 5 case such an approach was fraught with disaster. Of course, the motion was denied. Thus, the delay in preclearance was occasioned by a. Texas filing the matter in court as opposed to seeking preclearance in the Department of Justice, which tends to be more expeditious process, and b. not proceeding to a trial.

    This procedural conundrum presented the three judge court in Texas with very few options. Since elections could not be held using a plan that had not been precleared, the three judge court was faced with a untenable choice. Either allow the elections to go forward with a plan that was grossly malapportioned or delay the 2012 election cycle. In the end, the Court chose to craft its own interim plan with as few changes as possible except to correct the malapportionment.

    In the end this case will turn on whether the Supreme Court believes that the remedial power of the federal court should be used to correct the missteps of a state when it fails to obtain preclearance subsequent to the Census. Stay tuned.

  • Aaron Tang – 0 Promoted Comments

    Discuss what, if anything, you believe these Texas Redistricting cases suggest about the propriety of the VRA’s Section 5 pre-clearance mechanism.

    • Sherrilyn Ifill – 1 Promoted Comment

      It’s hard to cast the Perry redistricting cases as emblematic of either the benefits or burdens of the Section 5 mechanism. First, the cases come to the Court in a uniquely convoluted posture almost entire of the State of Texas’ making. A state that is truly desirous of receiving a prompt Section 5 preclearance determination opts for administrative pre-clearance, which is governed by a 60-day time limit. Republican-controlled states choose judicial preclearance when there is a Democratic administration because they prefer to take their chances with what they perceive is greater conservatism of the federal courts. Thus, Texas choose the route it deemed more favorable to obtaining approval of its plan, not the route guaranteed to provide a more expeditious resolution and to keep the line-drawing power in the legislature’s hands. Because of the Section 2 actions, Texas’ gamble didn’t pay off.
      Texas, led by a Republican governonr, was also willing to rush this case before the Supreme Court because it, like many other southern states, is anxious to provide the Court with an opportunity to strike down section 5. Given the Court’s recent decsion to uphold Section 5 in North Austin Municipal District, this gamble only makes sense in light of the demonstrated willingness of the Roberts’ court to strike down even recently affirmed precedent (Citizens’ United reversal Austin and McConnell) and to reach issues that are not squarely presented in a case in order to narrow the protections of laws the conservative majority disfavors (e.g., elevating the bar for meeting the commonality requirement of federal rule of civil procedure 23(a) for class actions, rather than merely limiting its determination to the plaintiffs’ failure to meet requirements of 23(b)(2) and (3) in Wal-Mart v. Dukes).
      The Perry redistricting cases say much more about the perception among Republican-controlled states that the Supreme Court stands ready and primed to strike down section 5, than it speaks to the efficacy of the Section 5 process itself.

      • Jim King – 1 Promoted Comment

        If the 60-day time limit is truly a limit, then why has Texas’ Voter ID pre-clearance submission to DOJ run more than 160 days? Fact is…DOJ can restart the clock whenever they like (by claiming insufficient data submissions), and there can be no doubt that they would have done the same thing with redistricting, a vastly more complex piece of legislation. By going to court, Texas ensured that DOJ would be forced to respond on a schedule not of their choosing. Furthermore, can there be any question that a DOJ pre-clearance denial letter to Texas would not be any different than DOJ’s submission to the DC court documenting their objections to the House and Congressional maps? Clearly, had Texas gone to DOJ instead of the DC court, pre-clearance would have been denied and they would have appealed DOJ’s decision to the DC court. By going straight to court, they saved considerable time. The problem is that DOJ and the plaintiffs want to argue both sides of the preclearance process issue. They repeatedly claim that going to DOJ would have been faster because it would have resulted in a formal preclearance denial that would have identified the portions of the map to which DOJ objected, thereby providing mapping guidance to the San Antonio court on which portions of the state’s maps should be granted deference. But at the same time, they claim the San Antonio court should grant no deference to the state’s maps even though DOJ’s precise objections are well documented in its response submissions to the DC court. This is a distinction without a difference.

    • Luis Fuentes-Rohwer – 2 Promoted Comments

      It is easy to criticize the Voting Rights Act and its preclearance provision, and the facts in the Texas Redistricting cases only serve to intensify the criticisms. So much is clear: we no longer see the types of discriminatory acts that gave rise to the Act, and Bull Connor is indeed dead. What we see instead are facts like those in Texas, where the crass pursuit of partisan advantage overwhelms all other considerations, sometimes even federal law. To critics of the Act, this means that Section 5 has outlived its usefulness. On these facts, I am not so sure.

      There is value in guarding against retrogression. As Texas makes amply clear, state elected officials will not consider the interests of voters of color unless they happen to align with their own. The facts here are particularly poignant: while most of the population growth in the state was in the Latino communities, the congressional plan adopted by the state legislature reduced the number of “minority opportunity districts” while at the same time maximizing the number of Republican districts. There is a reason the state chose the slower and far more burdensome preclearance route, through the district court in DC. This one smells funny, by a mile.

      But the bigger lesson of these cases lies elsewhere. Here is the conservative majority on the Supreme Court rushing in at the eleventh hour and coming to the rescue of state Republicans. As cries of judicial activism are directed at the lower court in San Antonio, it is important to remember that the Supreme Court has played an integral role in creating this entire mess. This is not necessarily to say that the Court should get out of the business of regulating elections. It is to say, instead, that nothing about this case is new, or particularly revealing. This is, unfortunately, business as usual.

      • roxanne friedman – 4 Promoted Comments

        Luis —
        Bull Connor may indeed be dead, but there are still many cases of unlawful refusal to register voters. Registration by college students in the location of their college remains a problem in most locations. Failures to provide voting materials in languages other than English is also a problem, leaving minority voters vulnerable to disinformation campaigns claiming that only one person per family can vote. Also, the purging of registered voters by Republican election officials using a Republican computer consulting firm with an inadequate matching algorithm without notice to the voter is widespread.

        One premise of the Voting Rights Act is that voting by all eligible voters is a civic good, and that eligibility criteria be based on limited, objective criteria (age, citizenship, not imprisoned for a felony, of sound mind). This premise, combined with the one person-one vote principle, is what makes our political system a representative democracy. We have not yet eliminated all the non-representative elements in our Constitution (the apportionment of the Senate, the minimum representation requirement of the House, the electoral college as the combination of the two), but at least the worst features have been addressed (non-voting slaves; requirements based on race, sex, age>18, poll tax; some property- and geography-based discrimination).

    • Henry Chambers – 1 Promoted Comment

      The case does not say terribly much about the propriety of the pre-clearance mechanism. Providing a choice between administrative preclearance guaranteed to be finished in 60 days and judicial preclearance that does not have a guaranteed end date is arguably neutral depending on how much longer the judicial preclearance process takes. If the processes can be made to take roughly the same amount of time, the mechanism is fine; if the processes necessarily take wildly different amounts of time, the mechanism provides the opportunity for either side to game the system depending on what each side gets by gaming the system.

      How much longer a judicial preclearance process may take may depend on the questions that must be answered in a preclearance case. The simpler the questions, the less time the judicial process should take. If preclearance is designed to be a fairly quick look to see if the changes the jurisdiction made are clearly discriminatory, a court might be able to preclear relatively expeditiously. Indeed, one might argue that the fact that the DOJ is only given 60 days to develop a basis to object to preclearing a plan suggests that the questions underlying preclearance ought to be relatively simple to resolve or understand. Conversely, if preclearance is intended to be more like a pure section 2 case, judicial preclearance arguably is out of the question in the run of preclearance cases. The Court might do its greatest service in determining how the preclearance inquiry is to be structured to guarantee that judicial preclearance is a viable option for covered jurisdictions.

    • Kal Renzi – 1 Promoted Comment

      This case provides an ugly mechanism for an overall repeal of S5. The South Carolina voter ID case provides a much stronger argument given Marion v Crawford County rejecting the bulk of Holder’s arguments.

      In any case, a couple things are in my view likely.

      1. Plaintiffs here argue that TX-25 is a S5 covered district while conceding that is is NOT a S2 covered district. San Antonio court sided with the plaintiffs here in the interim map by giving them their desired TX-25. Likely outcome here is that Justice Kennedy will declare that S5 cannot be a stronger standard than S2, ie, no non S2 district can be subject to a S5 claim.

      2. Neutral state rules and policies will be given more deference. The San Antonio court openly and explicitly violated the Texas Whole County provision in Nueces County, again, at the request of the plaintiffs. Similarly, the state made a decision that Nueces County will stay whole in its congressional map and that should be respected.

      The Court *might* do these things.

      3. The current S5 procedure uses a ‘backwards’ burden of proof that puts the onus on the state to make its case for its districts. This could possibly be flipped to put the burden of proof on the DOJ/plaintiffs.

  • Bertrall Ross – 2 Promoted Comments

    The Texas Redistricting cases highlight for the first time a flaw in the preclearance mechanism, which arose because Congress in 1965 did not foresee preclearance being applied to the mandatory change of decennial reapportionment. Congress in 1965 originally intended the preclearance mechanism to act as a deterrence to jurisdictions with a history of voting discrimination (covered jurisdictions) from making changes to their voting laws in a way that discriminated on the basis of race. The options were either to maintain the status quo or obtain preclearance for any electoral changes made, by proving that the changes did not have the purpose or would not have the effect of discriminating on the basis of race. And as originally conceived, when the covered jurisdiction decided to make an electoral change and proceed down the preclearance route, any costs associated with delay for seeking preclearance would be borne by the covered jurisdiction that would have to retain the law until preclearance.

    With the burden of delay, the covered jurisdiction could therefore decide whether to proceed down any of the three routes designated in the law to obtain preclearance. First, it could seek preclearance from the Department of Justice, which proceeds in a more expedited fashion in that the Department has 60 days to object to the change. Second, it could seek preclearance from the Department of Justice concurrently with a declaratory judgment action in the District Court for the District of Columbia. This would provide the state with a preliminary assessment of whether the change is preclear-able while the action winds through the more deliberate judicial channels. Or third, the covered jurisdiction could go the slow route and seek preclearance exclusively through a declaratory judgment action in the District Court for the District of Columbia without seeking it from the Department of Justice.

    Since the covered jurisdiction could not adopt the voting change until preclearance, it bore the burden of delay. Minority voters generally did not suffer any consequences from the delay since the changes could not go into effect until they were precleared. The covered jurisdiction also had the option of avoiding the pre-clearance mechanism by simply not making any changes to their voting laws.

    The flaw in the Section 5 pre-clearance mechanism arises from situations such as reapportionment when covered jurisdictions are required to make changes. The requirement of one-person, one-vote mandates that states reapportion to create electoral districts of equal population at least every ten years. In addition to the mandatory nature of the change, there are important time constraints associated with it. Covered jurisdictions ordinarily have to reapportion between the time it receives the census numbers and the next election. In the case of Texas, this meant that it had about a year to reapportion and obtain preclearance for the change.

    Now, there is a dispute about whether Texas intentionally delayed the process of reapportionment; however, the arguments of the appellees that the state should be penalized for the manner in which it sought preclearance — through the slow route of the declaratory judgment action in the District Court of the District of Columbia — seems a little misguided from a legal perspective. Sure, the State could have gone through the more expedited channels of the Department of Justice — and given the Texas’s history of violations of the Voting Rights Act, it is likely that the decision not to is driven in part by its minimal regard for the rights of minority voters — but there is nothing in the statute itself suggesting that it has to. And once it decided to proceed down the path of a judicial action, it also seems wrong to suggest that they were legally required to forego pre-trial adjudication channels such as summary judgment, even again recognizing the potentially nefarious motives for this decision.

    What this case points to is the fact that the preclearance mechanism did not account for cases, like reapportionment cases, in which the burden of delay does not necessarily fall on the covered jurisdiction since the change has to be made. Judicial process takes time and it often will not be able accommodate the time constraints presented in the Texas case. If Congress had anticipated the conundrum presented by the need to obtain preclearance for reapportionment in 1965, it would have likely forced covered jurisdictions to proceed down the more expedited path in such cases. And the fault of subsequent Congresses responsible for the re-authorization of the statute in 1970, 1975, 1982, and 2006 was that they simply assumed that covered jurisdictions would proceed and continue to proceed down the more expedited channels of DOJ preclearance, even though the covered jurisdictions were not required to do so.

    Assuming that the court rejects the court plan and adopts the state plan as the interim plan until preclearance is obtained, as I think it will, this suggests the need for a congressional fix to the pre-clearance mechanism since the burden of delay will now fall on minority voters who face potential deprivations of their rights. Such a fix would force covered jurisdictions to obtain preclearance for changes necessitated by reapportionment through the more expedited preclearance channel involving the Department of Justice. I don’t see this fix as particularly politically feasible in this political context, but perhaps it could be made prior to the next decennial reapportionment assuming Section 5 is still around.

  • Randolph McLaughlin – 2 Promoted Comments

    Frankly speaking Section 5 has been a mixed blessing. While overall the Department of Justice’s Voting Section has been generally consistently a vigorous enforcer of the Voting Rights Act, there have been periods when the DOJ used the preclearance process to subvert the intent of the Voting Rights Act and to advance political purposes. During the Reagan era, the Civil Rights Division was headed by an attorney who was not a proponent of the statutes that he was in charge of enforcing. Similarly, during the last Bush administration, the DOJ used the preclearance provisions to force states to maximize the percentage of minority voters within certain districts, thereby ensuring that more Republicans would win Congressional seats.

    It remains to be seen how the Obama administration will utilize the preclearance provisions, but it is save to say that, at least with respect to Texas, there was a sentiment that preclearance would be used to advance minority group interests in the face of an blatant attempt to decrease majority minority districts and the legislators who were elected from such districts. That is the reason why Texas chose to pursue preclearance in the district court and not before the DOJ.

  • Aaron Tang – 0 Promoted Comments

    What, if anything, do you think the Texas Redistricting cases suggest about the Court’s Voting Rights Act jurisprudence more broadly, and where the Court may be headed?

    • Nick Dranias – 2 Promoted Comments

      The Court has been signaling for quite some time that it is concerned about the Voting Rights Act’s tension with the constitutional principle of race neutrality, as well as the VRA’s intrusion into the Elections Clause powers of state legislatures and the Tenth Amendment powers of states and their political subdivisions to structure their internal electoral processes. However, it will probably continue to roll-back the VRA incrementally. I speculate that Northwest Austin Municipal represents the initial phase of constraining the VRA through statutory construction. The Texas Redistricting Cases could also be resolved similarly through a simple clarification of the scope of a federal court’s interim equitable powers, bolstered by statutory construction. But it is also very possible, and perhaps likely, that the Court will now take the next incremental step towards rolling back the VRA and enforce structural constitutional principles relative to the separation of powers. My prediction is based on the fact that thoughtful and influential members of the current court have shown interest in constraining the VRA’s excessive delegation of legislative Elections Clause power to the judiciary. The Texas Redistricting cases seem to present the perfect factual and legal context in which to rule that the VRA violates the separation of powers in this sense. I am also hopeful that the Court might take the next incrementalist step—enforcing substantive constitutional principles—and actually hold that any map redrawn under the VRA based on racialist distinctions must withstand strict scrutiny. But we shall see.

  • Franita Tolson – 1 Promoted Comment

    In NAMUDNO v. Holder, Chief Justice Roberts expressed the concern that section 5 of the Voting Rights Act, by requiring that only covered jurisdictions preclear changes to their election laws, “differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’” This language has been a shadow over the constitutionality of section 5 ever since the case was decided. It is therefore no surprise that the state of Texas goes out of its way in its current filings to present the regulatory regime of the VRA as burdensome, unfair, and most importantly, resulting in a situation in which elections are governed by a court drawn map that completely contravenes the state’s policy choices. The Supreme Court, in resolving Texas’s claims, may not be able to avoid handing down a decision that, like NAMUDNO, narrows the scope of section 5 even if it avoids the constitutional question. Indeed, Texas’s latest reply brief brings the constitutionality of section 5 front and center; at the very least, any outcome that would require the district court to defer to Texas’s non-precleared redistricting maps would weaken section 5’s enforcement mechanism. Unfortunately, this outcome is a distinct possibility in this case because the Supreme Court could view implementation of the interim maps as undermining Texas’s sovereignty over elections, a concern that harkens back to the Court’s reservations about section 5 in NAMUDNO.

    In a recent article, I discuss the meaning of state sovereignty in the context of section 5, arguing that states have limited sovereignty over elections given Congress’s authority under the Elections Clause as well as the Fourteenth and Fifteenth Amendments to regulate elections. It is highly doubtful, however, that the Court will consider Congress’s expansive power—and by implication the states’ more limited authority—over elections in allowing the district court’s interim maps to stand. An expansive view of state sovereignty over elections, no matter how erroneous such a view may be, conceivably can encompass a requirement that district courts, already disfavored as a means of drawing redistricting plans, defer to state policy choices in drawing interim maps. That the state’s policy choices emerge from maps that are not precleared may not be dispositive; sadly, the Court could find that this concern is trumped by the alleged federalism costs imposed by section 5 and its perception that the preclearance regime imposes administrative and legal burdens on states that are unsustainable going forward.

  • Bertrall Ross – 2 Promoted Comments

    The conventional wisdom after NAMUDNO v. Holder is that the Roberts Court is no friend of Section 5 of the Voting Rights Act. And that seems right given that a remarkable eight justices signed on to an opinion that seemed to indicate that there were at least some doubts (and perhaps strong doubts) about the constitutionality of the Act. And the ninth justice, Justice Thomas, was ready to strike it down then and there. On the basis of these signals, jurisdictions are lining up to challenge the constitutionality of the Act.

    It is important, however, not to overstate the signals that the Court actually sent in NAMUDNO. It seems clear that the reason why the so-called four liberals signed on to a majority opinion questioning the constitutionality of a landmark civil rights statute was because of the narrowness of the doubt about the constitutionality of Section 5 expressed in the opinion. Specifically, the majority opinion seemed to exclusively focus its constitutional doubt on whether Section 5 was still constitutional as applied to electoral changes that impact registration and voting. In light of the growth in minority registration and voting over the last forty years to the point in which the Court found black-white parity in some covered jurisdictions, the doubt perhaps has some validity. However, the Court in NAMUDNO never expressed an opinion about the continued constitutional validity of Section 5 as applied to electoral changes that have the purpose or will have the effect of depriving members of minority groups of the opportunity to elect the representative of their choice – changes that dilute the vote of members of minority groups.

    The Texas redistricting is alleged to have such a purpose and potential effect and does not at all implicate concerns about vote denial. Even recognizing this distinction between NAMUDNO and the Texas redistricting cases, there is still, of course, the same inherent tension between congressional authority to enforce the Fourteenth Amendment through the preclearance mechanism and state sovereignty (including equal sovereignty) concerns. However, the differences is that the Court in cases involving challenges to the requirement electoral practices that have the purpose or potential effect of diluting the vote be precleared is not balancing congressional authority to enforce the Equal Protection Clause to solve a problem that it deems to no longer exists (problems with disparities in voter registration and voting) against state sovereignty concerns. Instead, in light of the continued racial polarization in voting in covered jurisdictions and the difficulty that members of minority groups continue to face in electing candidates of their choice in non majority-minority districts, the Court has to balance congressional authority to enforce the Equal Protection Clause to solve a problem that still does exists (or at least members of the Court have not yet denied that it does exist) against these same state sovereignty concerns.

    Of course, this doesn’t mean that the Court will necessarily resolve this competition of constitutional values by favoring congressional authority. The only point here is that the strength of the sides in the competition in the Texas redistricting case is different that that which was the case in NAMUDNO. And for that reason, I’m not sure we can draw as much as others have suggested from the 8-1 NAMUDNO decision about where the Court may be headed on the question of the facial constitutionality of pre-clearance.

    As we know and as Luis Fuentes-Rowher has written in his articles, much of this will likely turn on Justice Kennedy’s view of the continued constitutionality of Section 5. And from the tea leaves of recent cases, and particularly the Section 2 case of Bartlett v. Strickland, I think proponents of Section 5 can be comforted that he is not likely to strike the Act down in the Texas Redistricting Cases (especially given that the question was not adjudicated below, although, of course, that did not stop the Court in Citizens United). He will likely join the opinion that chooses the path of avoidance of the constitutional question.

    However, proponents of the VRA will perhaps be less comforted by the likelihood that he will join an opinion that will put a thumb on the scale of state sovereignty at the expense of Section 5. This likely will lead to the result sadly predicted by Franita in which the Court allows the state’s un-precleared plan to stand as the interim plan for the 2012 elections and the slow painful weakening of the Act will likely continue.

    So what happens when a case directly implicates the constitutionality of Section 5 as may happen this year? Well, I guess you’ll have to invite me back here for my thoughts!

  • Aaron Tang – 0 Promoted Comments

    In this thread, please predict how you think the Court will rule in the Texas Redistricting cases.

    • Luis Fuentes-Rohwer – 2 Promoted Comments

      Predicting the outcome of the Texas redistricting cases appears simple. We have the four moderates for upholding the San Antonio plan, and the four conservatives for striking down that plan and reinstating the legislative plan. If the mood strikes, these “strict constructionists” might even be persuaded to strike down the Voting Rights Act once and for all. Unsurprisingly, we find Justice Kennedy in the middle. The case boils down to which side of Justice Kennedy we should expect to see. If we get the old Kennedy, the one in Miller v. Johnson, Grutter and Croson, the San Antonio plan will be struck down and the Act is in serious trouble. If we get the new and improved Justice Kennedy, however, the author of the Court’s LULAC opinion and whose concurrence in Parents Involved showed a much deeper appreciation for issues of race in our country, the San Antonio plan might stick for the near future and the Act is safe for now.

      But the most interesting aspect of the Texas redistricting cases lies elsewhere.

      When the Court first confronted the constitutionality of the Act, in South Carolina v. Katzenbach, Justice Brennan’s notes make clear that he wanted the Court to adopt a deferential posture when examining federal statutes. The record was replete with facts and findings, which the Chief Justice was only too happy to recite. But this was a mistake, Brennan knew, because doing so would only bind the Court for the next case, when the record would not be quite so helpful. Justice Brennan was proven right in the next case, Katzenbach v. Morgan. No record in hand, he was forced to retreat, offering instead what came to be known as the Morgan power. But the damage had been done. South Carolina was good law and Morgan immediately became a sui generis activist decision by a Court hell bent on upholding an act of Congress. By 1970, when the Court decided Oregon v. Mitchell, Morgan had receded to the dustbin of history.

      I think of this early history every time I think about the constitutionality of the Voting Rights Act. All is not what it appears to be. Had the “activist” Justice Brennan had his way, the Act would be in much firmer constitutional footing than we find it today. Instead, we are left to debate the findings question and how much evidence is enough. This is a line-drawing question that needn’t be. Note, however, how comfortable the conservative justices are in drawing this particular line, almost out of thin air. In case doubts remain: activism goes both ways.

      Think of the history of the Act as the Court prepares to examine the constitutionality of the health care law. The analogy is unmistakable. As goes one, should go the other.

      • J.B. Howard – 0 Promoted Comments

        I’m not sure which way this cuts, but it is worth noting that two days after the Texas redistricting argument, the Court will hear argument in Coleman v. Maryland Court of Appeals, which will revisit the scope of the enforcement power under Section 5 of the 14th Amendment. As the Court has noted in the City of Boerne line of cases, the 14th Amendment, Section 5 power is virtually identical to the 15th Amendment, Section 2 enforcement power.

        The question in Coleman is whether Congress validly exercised its power under Section 5 of the 14th amendment when it purported to abrogate State sovereign immunity from damages claims under the “self-care” provision of the Family and Medical Leave Act. In Nevada v. Hibbs, the Court held that the family-care provision was a valid abrogation because it responded to unconstitutional conduct rooted in gender stereotypes. Self-care/sick leave arguably does not implicate those stereotypes, and the record of unconstitutional state conduct in this area is, at best, thin.

        The Roberts Court hasn’t yet weighed in on the City of Boerne “congruence and proportionality” test of the scope of congressional power under Section 5 of the 14th Amendment. As NAMUDNO indicates, that will be the applicable test if and when the Court reaches the constitutionality of the VRA.

    • Jim King – 1 Promoted Comment

      Even though the merits of Texas’ maps are not before the court, I think Justice Kennedy may be swayed toward Texas’ position by what has happened since his opinion in LULAC v. Perry where he was the swing vote in deciding that CD 23 needed to be redrawn to create a Hispanic opportunity district. At that time, Texas had reduced CD 23 below 50% HCVAP and Kennedy saw this as a clear violation. The district was redrawn to raise the HCVAP above 50% and it did indeed elect a Latino Democrat in 2006 and 2008. But much to the chagrin of the Democratic Party, it elected a Latino Republican in 2010. In 2011, the state’s map further increased Hispanic CVAP in comparison to the 2006 benchmark. But that wasn’t good enough for DOJ, the plaintiffs, or the District Court because, apparently, many of the Hispanics in CD 23 aren’t voting often enough, or when they do, they’re voting for a Latino from the “wrong” party. That CD 23 was redrawn in 2006 but nonetheless evolved into a swing district capable of electing a Latino Republican in 2010 is not unlike school desegregation cases where district boundaries and other factors were adjusted by the courts to correct illegal segregation, but population changes eventually resulted in re-segregation. Justice Kennedy addressed this situation in his concurrence in Parents Involved in Community Schools v. Seattle School District No. 1 where he wrote “Where there has been de jure segregation, there is a cognizable legal wrong, and the courts and legislatures have broad power to remedy it. The remedy, though, was limited in time and limited to the wrong.” The remedy in 2006 for CD 23 was to raise the HCVAP above 50%, and the state has now further increased the district’s HCVAP to a robust 58.5%. This is a significant level because the 50% mark appears to hold some significance for Justice Kennedy. His opinion in Bartlett v. Strickland said “Mandatory recognition of claims in which success for a minority depends upon crossover majority voters would create serious tension with the third Gingles requirement…”. It follows that if success for racial minority voters cannot depend upon “white majority” crossover voters, surely it cannot similarly depend upon the votes of “white minority” voters in a district that is 58.5% Hispanic. CD 23 is discussed in Texas’ reply brief, and I think the situation there will cause Justice Kennedy to look askance at the underlying legal proceedings that have slowed recognition of Texas’ maps. That may be enough for him to decide to agree with the state’s position that the lesser harm is to use Texas’ maps for one election cycle pending the outcome of the San Antonio and DC lawsuits.

  • roxanne friedman – 4 Promoted Comments

    After reading the transcript, the following seems clear:

    1. The constitutionality of section 5 is not on the table. The Chief Justice made this clear in an exchange with the lawyer for the respondents.

    2. At least the 4 “liberals” are satisfied with the job done by the Texas 3-judge court. Paul Clement pointed to one El Paso district with which nobody could see any problems. The most controversial district was the 33rd “minority coalition” district. Both Justice Breyer and the respondents’ attorney had answers to this.

    3. Clements’ best point was a fallback position that between a flawed judicial map and an unconsititional state map, one uses the state map. I have not yet gone back to check his authorities to see how applicable they are.

    4. The Court showed its weakness as an appellate court. It showed little ability to find a decision point or press on facts. The middle of the bench is showing its years.

    5. Probable outcome: (a) Either the 3-judge court plan or an alternative plan offered by the dissenting judge below, with which the respondents expressed little disagreement, will be installed as the temporary plan. The Court will have difficulty stating exactly how the 3-judge court erred.

    (b) The Court will allow Texas to reopen the case if it wants after the DC 3-judge court rules (expected mid-February). This will put any problem of delayed elections on the state if any part of the 3 plans are pre-cleared. However, don’t expect the Supreme Court to expedite any appeal in that case (Roberts non-joke).

    (c) The ratio decidendi will be something like this: failure to win summary judgment in a Section 5 judicial proceeding is not the same as loss of the proceeding, therefore the state plan is not a nullity; without at least TRO-level factual findings of section 2, 5 or constitutional violations, state plans cannot be ignored; the two district courts have made sufficient preliminary findings of section 2, 5 and constitutional violations to prevent the state’s map from going into effect unchanged; the alleged errors in map drawing were insufficient to overturn the 3-judge court’s map OR recognizing the flaws in the 3-judge court’s map but due to shortness of time preventing a redraw, the dissenting judge’s map is adopted.

    • Jim King – 1 Promoted Comment

      DOJ’s DC court filing in response to Texas’ pre-clearance lawsuit is a public record legal argument addressing the precise same issues that would have been evaluated had Texas gone to DOJ instead of the DC court for pre-clearance. Thus, it is identical in all relevant ways to what would otherwise have been a DOJ pre-clearance denial letter. Using Justice Kagan’s comments as a starting point and following them to their logical conclusion, I believe the court remands with instructions to apply Upham deference to the state’s maps, adjusting as necessary for DOJ’s objections as filed with the DC court, and allowing Texas the opportunity to argue their side of each specific challenge (since there is no actual pre-clearance denial). With the court’s conservatives not trusting the SA court (else they would never have taken the appeal), they could further warn that due to time constraints, any further emergency appeal by Texas to the re-drawn maps will be handled solely by Justice Scalia as Circuit Justice.

  • roxanne friedman – 4 Promoted Comments

    After listening to the arguments, I’d like to expand my comment.

    Roberts believes that the problem with the SA court decision is that it employed a device (a black-hispanic majority minority district) not approved by the Supreme Court and that it presumed that the challenges raised by the plaintiffs had validity. Scalia joins in this. Alito hints at this.

    Alito believes that there is no such thing as neutral principles of redistricting, that it is inherently Political (as in Republican, Democratic v. republican, democratic). This is a giant contrast with Justice O’Connor whom he replaced. He is being wooed (not just in this case) by Justice Kagan to join a “new thinking” faction that would break the sterile but lingering 4-1-4 pattern of the Rehnquist Court. Alito’s remark about Thomas Jefferson’s opinion of video games heralded a split in the Scalia mafia. Nevertheless, he is more conservative than Hobbes and more Republican than Taft and is clearly a vote against the plan.

    Kennedy believes that were it not for Section 5, which he hates but agrees is not at issue in this appeal, the case would be easier. He is susceptible to Clement’s argument that normal TRO/PI standards should apply but expects Texas to lose in both courts and is personally troubled by the indications that Texas intentionally discriminated in drawing the maps. He had to have voted for the stay and the cert grant, but he did that in support of the Judge Smith’s 3-judge-court dissent.

    This is the first case in which Sotomayor’s presence in the conference will make a significant difference. Roberts was able to cut off attorney Garza when he sought to talk about Texas’ sorry history of discimination, but he can’t turn off Sotomayor. She will carry Kennedy’s vote and who knows, maybe even Thomas’.

    Breyer and Ginsburg will support the 3-judge court’s action based on its description of its methodology and Section 5’s prohibition against the use of a non-precleared electoral change.

    Kagan does not have any doubts about Section 5 and proposes a new idea for harmonizing it with Section 2.

    So it all comes down to time pressure.

  • Lasix Generic – 0 Promoted Comments

    Hey, I agree with roxanne friedman, The court’s order suggests that it may have intentionally drawn District 33 as a ‘minority coalition opportunity district’ in which the court expected two different minority groups to band together to form an electoral majority… If 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 Justices wrote.

    In a separate opinion, Justice Clarence Thomas concurred with the court’s ruling but agreed with the Texas Attorney General’s office that the maps approved by the Legislature should be implemented for the time being.

    “Although Texas’ new plans are being challenged on the grounds that they violate the Federal Constitution and [Section] 2 of the Voting Rights Act, they have not yet been found to violate any law,” Thomas wrote. “Accordingly, Texas’ duly enacted redistricting plans should govern the upcoming elections.

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