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Argument preview: Texas, the courts, and minority voters

At 1 p.m. on Monday, the Supreme Court will hold 70 minutes of argument in three cases — being heard on an expedited schedule — on the new election districts that Texas will use in 2012 balloting for the state legislature and for its expanded delegation in Congress.  Arguing for the state of Texas, with 30 minutes of time, will be former U.S. Solicitor General Paul D. Clement, now in private practice in Washington with the Bancroft law firm.  He will be followed by Principal Deputy U.S. Solicitor General Sri Srinivasan, arguing for the federal government as an amicus, with ten minutes.  Arguing next, for the challengers to the state legislature’s redistricting maps, with 30 minutes, will be Jose Garza, a private attorney in San Antonio who has been representing the Mexican American Legislative Caucus in these cases.



Just as the Supreme Court’s controversial ruling two years ago in Citizens United v. Federal Election Commission has become a major influence on the financing of the 2012 elections, the Court’s coming decision this Term on three legislative redistricting cases from Texas may have a strong impact on who wins some key election contests — and might even help settle control of the new U.S. House in the Congress that gathers next January.   The ruling also may bring a severe test of the constitutionality of America’s most important law on the voting opportunities of minorities, the Voting Rights Act of 1965.  For a case that could be decided on very narrow grounds, it has developed potentially historic proportions.

The three cases under review are Perry v. Perez (11-713), on redistricting the state house, Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics.  The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S.  House seats.

Although the cases as they reached the Supreme Court are focused closely on the special requirements imposed on some states — mostly in the South — by Section 5 of the Voting Rights Act of 1965, their implications range well beyond that provision and raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.

This dispute is, at its core, a fundamental test of historic questions about federalism — that is, the roles of federal vs. state governments in managing election processes.

The Section 5 issue arises because Texas, with a prior history of discrimination in voting based on race, is required by that section to get official clearance in Washington for any change it makes in any voting method or procedure — and that includes new districting maps — either from the U.S. Justice Department or from a special three-judge District Court in the nation’s capital.  Texas, in fact, has an ongoing procedure in that District Court, at a trial starting later this month, seeking clearance of the three redistricting maps drawn by its legislature.  Either process is actually called “preclearance,” because a state or local government covered by Section 5 is not supposed to put any election change into actual effect without that official seal of approval.

Most if not all of the state and local governments now covered by Section 5 — that is, some or all of 16 states — are chafing under their Section 5 obligations.  That resentment has been encouraged by the Supreme Court’s decision in 2009, in the case of Northwest Austin Municipal Utility District No. 1 v. Holder, in which Section 5 barely averted a sweeping constitutional challenge while not escaping some sharp criticism within the Court about how far the Section goes to intrude upon the covered states’ sovereign powers and how much out of date its coverage rules may be.

Texas has not questioned — at least not directly to this point — its obligation to seek the “preclearance” that Section 5 requires for its new districting plans, although its lawyers have recently begun intimating in filings in the cases that the constitutional problems the state sees with that provision are definitely lurking in the background of this dispute. The Court, of course, is free to ignore those intimations, since the cases now before the Court do not directly involve Section 5’s constitutionality.

In one of its filings, Texas has said that “the only real question” before the Court at this time is “what to do now that the need for an ‘interim’ map to govern the 2012 elections has become exigent.”

As one moves more deeply into the filings in the cases, however, more — perhaps much more — seems to be at stake.   Assuming, however, that the Court confines its inquiry to that one “real question,” how did that question develop?

While Texas was seeking the legal consent of the District Court in Washington to use its three new redistricting maps, eight separate lawsuits were beginning and moving ahead in a separate, three-judge U.S. District Court, sitting in San Antonio.   Those lawsuits, filed by advocates for minority rights and by one state senator who had voted against the legislature’s new map for the state senate, were based upon another provision of the 1965 Voting Rights Act — Section 2 — and upon the U.S. Constitution.  Section 2, applying to all states in the nation, bars the use of voting methods that discriminate on the basis of either race or membership in a particular language group.  The constitutional claims contend that the state legislature’s maps were the product of racial and partisan political gerrymandering, and violated guarantees of one-person, one-vote equality in redistricting.   Some of the San Antonio cases have been tried, but have not reached a final decision on the challenges; others have been postponed indefinitely.

The San Antonio court has said it would not rule on the legal challenges to any of the plans, while Texas was pursuing preclearance in Washington.  While that proceeding went forward, that court also said, Texas could not implement its redistricting maps.   It then ordered the parties to submit proposals for “interim” plans, to be adopted by the District Court for use on a temporary basis in the 2012 elections.   In November, sometimes by a divided 2-1 vote, the San Antonio court fashioned its own maps for the two houses of the legislature and for the U.S. House delegation.

The court’s plan for the state house redrew the boundaries of 128 of the 150 seats, sometimes dividing cities.  It also created three new “coalition districts,” in which blacks and Hispanic and Asian populations were concentrated in order to give them a chance — as a group — to prevail in the choice of candidates they preferred.  Texas has since complained that, while ignoring the legislature’s maps, the District Court built closely upon the legal complaints of the challengers.

The court-approved plan for the state senate, again following the requests of the challengers, redrew five adjacent districts.   And the court’s plan for the U.S. House delegation altered the boundaries of every one of the 36 Districts that the legislature had drawn.

In none of those court-approved plans, all issued in late November, did the San Antonio court rule that any part of the legislature’s maps was illegal; indeed, that court has continued to insist that it has no authority to judge their validity while the preclearance process is underway in Washington.

Texas asked the San Antonio court to put its “interim” maps on hold while the state pursued a challenge directly in the Supreme Court.  (Redistricting cases bypass the usual route from a District Court to a federal Circuit Court, going instead directly to the Supreme Court for what amounts to mandatory review.)   The Texas court, dividing 2-1, refused to delay its maps.   In a later opinion, it explained more fully why it felt it had no power to allow the use of any of the state legislature’s maps.  Circuit Judge Jerry Smith, sitting as the Circuit member of the three-judge District Court, dissented.  “Unless the Supreme Court enters the fray at once to force a stay or a revision,” Judge Smith wrote, “this litigation is, for all practical purposes, at an end.”

Texas, believing that it confronted the prospect of the 2012 elections going forward under court-approved plans that it deemed without legal foundation, turned to the Supreme Court.

Appeals to the Supreme Court

After the District Court had drawn its own “interim” maps, there was still no lower court opinion either in San Antonio or Washington answering any of the legal or constitutional challenges to the legislature’s maps (and, with the case now going to argument in the Supreme Court, there is still no such ruling in the lower courts).  Thus, the ordinary basis for a direct appeal on the merits to the Supreme Court did not yet exist.  The state, therefore, asked the Supreme Court initially only to issue emergency stays of the three court-approved maps, and then to send the cases back to the San Antonio court with an order not to issue any “interim” orders “unless some likely violation of law is found.”   The state also asked the Justices to order the District Court “to defer to the legislatively enacted” maps.

The state’s claim that the District Court majority had exceeded its authority in issuing its “interim” maps was based largely, from a legal perspective, upon the Supreme Court’s 1982 decision in an earlier case involving Section 5 and a court-approved plan to redistrict the Texas congressional districts (Upham v. Seamon).  That decision, Texas argued, exactly fit what had newly occurred in the state: a three-judge court had drawn its own maps without deferring to the legislature’s plans.  There, it noted, the Supreme Court overturned the court’s maps with an order to defer to the legislature unless it found the state plan was in some way illegal.  (That case differed from the new Texas controversy, because preclearance had been denied in the Upham case as to some parts of the legislature’s plan; in the new cases, that issue is not yet settled.)

If the Court were not willing to send the cases back to the District Court, Texas’s lawyers suggested, it could treat the stay applications as formal appeals of the District Court’s “interim” maps and then rule on the scope of the District Court’s authority to devise any alternatives to the state plan in the period while the preclearance process was going on in Washington.

The minority advocacy groups, resisting the stay applications, told the Supreme Court that the key precedent at issue was not Upham, but rather was Lopez v. Monterey County, issued in 1999.  That case involved a California county that was covered by Section 5, and thus had a duty to seek preclearance for any voting change.  The county did not do so when it redrew county judicial election districts, a move that was required by a state law.  Since the county had not devised the plans on its own, and since the state of California was not itself covered by Section 5, the county argued, it need not have sought preclearance.  A federal District Court had agreed, ruling that the county could go ahead with judicial elections under the revised maps.  The Supreme Court disagreed, and said any change in voting laws or methods by a covered government, state or local, had to be precleared before it could ever be used.

To Texas’s argument that Lopez did not apply because Texas had obeyed its duty to seek preclearance of its maps for 2012, the minority groups’ lawyers said that the state was in essence claiming that “submission not preclearance is the operative event” requiring a District Court to use the state’s uncleared plan as the court plan.  That notion, the groups’ counsel said, runs directly contrary to the Lopez precedent.

All that the Upham precedent establishes, the opponents contended, was that a District Court in fashioning a remedy when necessary is to “minimize violence to those legislative policies embodied in the plan by changing it only to the extent necessary to cure its cognizable flaws.”  In that case, the federal government had objected only to a certain part of the state map, and allowed the state to use the parts that were not challenged. In the new cases, the challengers said, there has been no final ruling on the legality of any part of the 2012 maps.

The opponents also brought into the case a theme that they would repeatedly emphasize: that Texas was responsible for any emergency necessitating the adoption of “interim” plans because it had slowed down the process of preclearance by going to the District Court instead of going to the Justice Department, which, the challengers said, must review such a request within defined time limits.  (That is a complaint that Texas has vigorously resisted throughout the ensuing contest, arguing that it had moved with dispatch at every step, and that the minority groups themselves have used every option available to them to complicate and slow the process.)

The state of Texas procedurally got everything it wanted from the Supreme Court at that stage, when the Justices on December 9 blocked the District Court’s maps temporarily, treated the stay applications as “jurisdictional statements” (that is, the kind of filings that are used in mandatory appeals on the merits), put the three cases together, set up a briefing schedule, and selected January 9 at 1 p.m. for a one-hour oral argument (later expanded to 70 minutes to include the U.S. Solicitor General, not previously involved in the San Antonio cases).  That fast-tracking put the cases before the Court in the Justices’ first day back on the bench after the midwinter holiday recess.

After the Court put the cases on its docket for review, the San Antonio District Court accepted a compromise agreement between the major political parties in Texas, and postponed the scheduled primary election from March 6 to April 3, with a new runoff date, if necessary, for June 5.  The District Court made clear, though, that the new schedule depended upon having a new set of redistricting maps in place by February 1.  The delay eased some of the pressure on the Supreme Court, but did not add a great deal more time for the Justices to reach a final decision on just what, if anything, the San Antonio court was to do next.  As the oral argument before the Justices nears, it is quite unclear whether a decision will emerge in time to get maps into place by February 1.

Briefs on the Merits

Because of a procedural quirk, the way the cases reached the Court — as stay applications — meant that it was not exactly clear at the time the Court accepted review just what issues it had agreed to decide.  A stay application does not require a specific statement of issues, as a normal jurisdictional statement must, so Texas to that point had left the Court with the clear impression only that it wanted the District Court reversed, but without definite arguments of what legal rationale would stand behind that, other than the Upham precedent and Circuit Judge Smith’s dissenting comments.

When Texas filed its merits brief on December 21, it spelled out a single question: “whether, while preclearance remains pending, another district court [separate from the one handling preclearance] may order the use of judicially drawn ‘interim’ electoral maps that give no deference to the state’s duly-enacted maps, are not premised on any actual or likely violation of law, and are based on nothing more than the court’s own notion of sound public policy and ‘the collective public good.’ ”

The brief, however, pushed to the fore Texas’s plea that the Court should order the District Court to put into effect for the 2012 elections the maps as drawn by its state legislature, with no changes.  The basic argument for that plea was that time was now too short to draw up a new set of redistricting maps.  The brief noted the postponement of the primary to April, but also stressed the District Court’s comment that even that schedule could be met only if “usable maps” were in place by February 1 (only about three weeks after the Justices’ January argument).

“It is not at all clear,” Texas argued, “that these exigencies of timing allow for a remand for the Texas court to apply the proper remedial standard and craft yet another batch of interim maps for the upcoming elections.”   Nothing in federal law, the state brief contended, bars a federal court from making emergency use of a state’s election plan “without first obtaining clearance.”  The “interim” use of the legislature’s maps, it said, would not amount to a ruling that Texas need not go forward in the preclearance proceeding in Washington.  But that proceeding, the state emphasized, is focused on what maps were to be used “on a permanent basis.”   The practical effect of this plea, of course, would be that the Texas legislature’s version of all three maps would be used throughout 2012 in the state, through the November 6 general election.

That, in essence, was the only part of the state’s merits brief indicating that “the only real question” was “what to do” in the short term.  Going beyond that, the brief then raised a host of other legal complications it found in the San Antonio court’s approach, and asked the Court to issue an expanded ruling to provide guidance to the lower court judges.

Specifically, the brief urged the Court also to rule (1) that federal voting rights law does not require proportional representation based on race, and that a state has no duty to maximize voting strength of minorities, (2) that the law does not require states to draw coalition districts in which a group of different minorities together make up a majority, (3) that a District Court must apply traditional redistricting principles, such as not breaking up counties unless that is the only way to avoid a legal violation, and (4) that a District Court must not try to equalize population among state legislative districts unless the deviations in a state plan actually violate the law.

If the Court were to do all of that, it would significantly curtail the power of a three-judge District Court to craft its own set of redistricting maps — at least in the Section 5 context.

Under the briefing schedule set up by the Supreme Court, the Justices abandoned the usual timetable of sequential filing, and ordered that briefs come in simultaneously.  So, on December 21, four groups of minority advocacy organizations, voters in the state, members of Congress, and state legislators filed their own merits briefs, lambasting Texas’s record on racial bias in its election methods, putting heavy emphasis upon the devastating effect on Section 5 that they argued would result from allowing Texas to put its own maps into effect until they had been precleared in Washington, and eagerly defending the San Antonio court as having done exactly what federal voting rights law requires, and no more.

“Here we are again,” the League of United Latin Americans Citizens’ brief said, noting that the Supreme Court just five years earlier in a Texas redistricting case (LULAC v. Perry) had spoken of “the long, well-documented history of discrimination that has touched upon the rights of African-Americans and Hispanics to register, to vote, or to participate otherwise in the electoral process.”  The state, LULAC contended, is “apparently paying no heed to anything this Court said.”

A Latino Redistricting Task Force, the Mexican American Legislative Caucus, and others joined in a brief with two themes: a minutely detailed recounting of the history of the case since the state legislature adopted the three plans, and a considerably briefer legal defense of the District Court.

In a separate brief devoted entirely to the new congressional districting issue, LULAC, MALC, individual voters, the city of Austin, and Travis County argued that the startling growth in the state’s Hispanic population will, in a short time, make it impossible for a state legislature to deny minority voters equal opportunity to elect candidates of their choice.  But, it went on, this time, the legislature sought to “postpone that date” by “intentionally dismantling coalition districts and minority opportunity districts, packing millions of additional minority voters into fewer minority opportunity districts than existed before, and cracking naturally occurring minority populations to prevent them from obtaining political power.”

They accused the state of seeing only one right at stake — “the right of state sovereignty” — and of arguing that that right “trumps all.”  The state, it added, “forgets that our Constitution values other rights even more highly, including the right of individuals to vote and to have their votes count equally, regardless or the color of their skin.  We fought a war to win these rights.”

Seeking to head off the risk that the Court might use the case as a vehicle for reexamining the burdens that Section 5 puts on the covered states, that brief said that issue “is neither raised nor necessary to a decision here,” in a case that deals only with how a District Court is to proceed “when faced with an impending election and a state-enacted plan that has not received Section 5 approval.”  The Court’s prior rulings, these groups argued, provide “a clear answer: such a plan may not be adopted by a court.”   All that such a court can do, the brief asserted, is to adopt an “interim” plan to be in effect until a state plan gets Washington clearance.  “What a court must do in this situation,” it said, “is exactly what the District Court did here.”   Essentially the same points were made in a brief filed by the Texas chapter of the NAACP, along with several of Texas’s House Representatives.

One week later, when amici filings were due, the Obama Administration entered the San Antonio branch of the redistricting controversy by filing such a brief, urging the Court not to allow Texas to use the maps drawn up by its legislature. If time is too short, it added, the solution should be to put in place the District Court’s “interim” maps, even though the brief said those plans had some defects, which could be remedied by a remand to the District Court to make some revisions — particularly providing some further support for some of the conclusions it had drawn.

The government brief suggested that nowhere in the Voting Rights Act’s Section 5 was there any place “for allowing any temporary circumvention of the preclearance requirement, much less one of the magnitude [that Texas] seek[s].”    Unlike the minority advocacy groups and legislators, the Obama Administration has no objection to the state legislature’s plan to redraw the districts for the state senate.

Other amici filings included one by eight states that are subject in whole or in part to Section 5.  Some of them, it noted, “have argued elsewhere that Section 5 is unconstitutional,” but these states “take no position on that question in this case.”  All they seek, it added, is that the Court apply Section 5 in a way that “uses a little common sense.”

The Eagle Forum Education and Legal Defense Fund, a conservative advocacy group, urged the Court to allow Texas to use the legislature’s maps in the interim, pending the clearance proceedings.  But not all of the amici briefs on Texas’s side of the case support its plans. For example, a group named  the Project on Fair Representation challenged the adequacy of the legislature’s plan for the state house seats.

A single amicus brief was filed on the side of the challengers, by the Greater Houston Chapter of the Organization of Chinese Americans.

The Cato Institute, a libertarian advocacy group, came into the case not supporting either side, and taking no position on the maps either side defends. The Cato brief had a larger goal: urging the Court to reschedule the argument in the case, and take up the fundamental issue of the constitutionality of Section 5 itself.   The 1965 law’s Sections 2 and 5, that brief asserted, are “at a bloody crossroads,” and the path they command leads only into race-based redistricting.  “The Voting Rights Act has served its purpose,” Cato said, “but is now outmoded and unworkable.”

When Texas filed its reply brief, its hesitancy about getting into the profound issue of Section 5’s constitutionality had been put partially aside, and the brief several times cited the Court’s Northwest Austin decision in which Section 5 had barely survived.   Perhaps the Cato brief had provided an opening, but Texas  also produced its own critique of Section 5, suggesting that the challengers to its legislature’s plans had sought to exclude a state like Texas from going to a federal court, instead of to the Justice Department, for official clearance of its election changes, and that imposed a new threat to state sovereignty.

The issue of Section 5’s validity, then, has been made at least a potential issue in these three cases that had seemed, when they reached the Court, to be much narrower in scope.

What lies largely unexplored in the written filings in these cases is the potential impact on who actually will get elected in Texas in 2012, depending upon which maps are used. And one of the lingering questions is how the decision in this case will affect the probably-very-close contest for control of the U.S. House of Representatives in this year’s elections.  It has been suggested by some analysts that if the District Court’s “interim” plans survive in the Supreme Court, that may lead to as many as four more Democratic members in the House from Texas, buoyed by the expanded Hispanic population.   The burgeoning Hispanic voter population may also put into some doubt the Republican dominance of electoral politics in the state, and in its legislature.


If the Supreme Court gets the sense that it must rule in a way that will produce, by February 1, a set of workable redistricting maps for Texas, it will be looking for ways to simplify the case and to avoid dividing the Court as much as possible. Having put the District Court’s orders on hold, there is now no map for any legislative election in the state this year.  The Court must either draft maps of its own, accept — even grudgingly — something that already exists, or find a streamlined way to get the District Court in San Antonio to craft a plan that minimally alters the state’s maps.

Giving the postponement of the “interim” maps, it would appear that there is a majority in the Court that has taken seriously Texas’s complaint that its very sovereignty is on the line, so it seems that the simple alternative of allowing the use this year of the court-ordered “interim” maps — as suggested most significantly by the Obama Administration — is not that simple alternative.

But given the intensity of the minority groups’ challenge to the Texas legislature’s plans, along with the Obama Administration’s hostility to the state house and congressional maps drawn by the legislature, the chances of avoiding a divisive fight within the Court would seem to diminish the chances of letting Texas use its own maps, unchanged, for this year’s elections.  A majority of five to embrace the Texas maps, as a short-term fix, would obviously be enough to force that option, but it definitely would have to be forced: the prospects are that such an option would significantly prolong the Court’s deliberations and thus jeopardize any chance of getting a “fix” in place in time.

The time constraints, however, would seem definitely to prevent the Court– whatever its most basic inclinations — from going deeply into the workability, or not, of Section 5.   For that reason, there may well be little appetite within the Court, even among Section 5’s critics, to take on at this point the ultimate issue of Section 5’s constitutionality.   The Cato Institute’s suggestion that the Court order the cases re-argued, with the dispute then focusing directly on Section 5’s validity, seems quite unlikely since the Court has grasped the nettle of dealing with the District Court’s “interim” maps.

Monday afternoon’s argument, therefore, will be a severe test of the ingenuity and persuasiveness of the three lawyers, even if they try to keep their focus solely on the short-term issue of what to do right now.  The same test lies before the Justices, too.

What may be deeply frustrating to the Court’s majority, about Section 5’s fate, is that the Northwest Austin case may well have been intended as a message to Congress to take on the task of modernizing that provision and, yet, such a message did not get through to Capitol Hill.   There was no legislative response to that ruling, and, in the meantime, the states and local governments whose election systems must satisfy Section 5 and Section 2 at the same time have grown increasingly impatient with things as they presently stand.   The vigor of Texas’s challenge in these three redistricting cases, and its escalating rhetoric as those cases have developed, are clearly intended for audiences beyond the Court as well as the Justices on the bench.






Recommended Citation: Lyle Denniston, Argument preview: Texas, the courts, and minority voters, SCOTUSblog (Jan. 7, 2012, 12:02 AM),