First Thoughts On Voting Rights, Gerrymandering, and Texas

Rick Pildes of NYU Law School has these thoughts on today’s decision:

Today’s complex opinion in the Texas case is noteworthy for a number of reasons, some more obvious, some more subtle. As a practical matter, Democrats lost the war but won a battle that might have important partisan implications nonetheless. As a legal matter, apart from its significance for current law in the areas of race, politics, and the Constitution, the decision will also have direct implications for current debates in Congress over whether to renew the Voting Rights Act and if so, in what form, both to address possible constitutional challenges to the Act and to deal with the diversity within new minority communities, such as the Latino community, that the Court wrestles with in this case.

1. Partisan Gerrymandering. This aspect of the case will get the most attention, since it is both the easiest to understand and has the dramatic personality of Tom DeLay at the center. The Court held that the hardball tactics Texas Republicans used to redraw districts to increase Republican power in the US House may have been tough politics, but not in such a way that the Constitution was violated. As between the aggressive Democratic gerrymander of Texas in the 1990s and the Tom DeLay inspired gerrymander of today, the Court majority essentially washed its hands of the matter and concluded there was no constitutional basis for choosing sides in this ugly partisan warfare. The question now will be whether this ruling triggers a similar spiral of other mid-decade redistrictings after this fall’s House elections, the answer to which might depend on how close the balance of power turns out to be in the House — and whether Democrats in states like La, New Mexico and some other states are willing to use the same hardball tactics as DeLay prompted in Texas.

Looking forward on this issue, might partisan gerrymandering violate the Constitution in other contexts? Technically, the answer remains yes, as it has for many years now. Practically, though, the opinion makes it less likely the Court will find an actual violation. Chief Justice Roberts and Justice Alito once again signalled their unwillingness to confront precedents they did not have to address; showing a cautious moderation, both refused to take positions on the large question of whether partisan gerrymandering is ever unconstitutional. But Justice Kennedy rejected yet another effort to craft such a standard. Because Justice Kennedy has been more open to the possibility of such a standard, his rejection of every actual standard offered to him, including the one today, makes it harder for plaintiffs to win on partisan gerrymandering claims.

2. Race, Ethnicity, and the Voting Rights Act. Nonetheless, Justice Kennedy, and a majority in this case, clearly remained disturbed about the extent to which current officeholders manipulate the design of election districts for their own self-interest. And partisan politics is deeply entangled these days with race and ethnicty. Even though the Court rejected the direct partisan gerrymandering attack on Texas’ plans, it indirectly accepted part of that claim through the route of focusing on the manipulation of Latino voters in the Texas plan. Republicans sought, for partisan reasons, to dismantle one Hispanic district and compensate (as they thought the Voting Rights Act required), by creating a different Hispanic district elsewhere. But the Court majority rejected this attempt. As Justice Kennedy concluded for the Court, dismantling the first district would have violated the Act, unless Texas had created a new, legal Hispanic district to replace the one dismantled. But Texas had not done so because the new Hispanic district itself violated the Act. Why did it do so? Because the groups of Latinos put into the new district — some in the Austin area, others near the Mexican border — were located far apart and, more importantly, had “disparate needs and interests,” according to the Court, mostly because their economic status differed considerably. This constitutes a major, major innovation from the Court, one that reflects the increasingly skepticism to grouping voters together based on racial or ethnic identity. Justice Kennedy concludes, in essence, that the Voting Rights Act does not permit Latinos to be grouped as Latinos, merely because they share Latino identity and vote for Latino candidates, when they otherwise differ in class status and location in this way. Moreover, Chief Justice Roberts and Justice Alito have laid down a major marker on these issues, for in the Chief’s separate opinion, he writes: “It is a sordid business, this divvying us up by race.” The result in this case, and passages like this in the various opinions, have direct implications for the renewal of the Voting Rights Act, which I will address in a separate matter.

3. Immediate practical consequences. Given that the Texas plan is illegal and elections are this fall, there are two options. The Governor could call the legislature into special session to draw a new plan for the fall elections. Ironically, it was through just such special sessions that the legislature created the plan held illegal today. Texas’s legislators will thus end up devoting much of the decade to drawing and re-drawing and re-re-drawing a congressional districting plan. When a new plan is drawn to comply with the Court’s decision, it is not clear at this stage how if at all the partisan makeup of the delegation might change. Alternatively, Texas could ask the federal court below to stay the decision and permit it to hold elections under the illegal plan.