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Is Section 5 on the line right now?


A lively discussion that has gone on among those following the Texas redistricting cases — coming up for argument in the Supreme Court next Monday afternoon — has focused on whether the Justices might say something in those cases about the constitutionality of the key voting rights law’s provision that is centrally involved in the cases.  That is Section 5 of the 1965 Voting Rights Act, and how it is enforced is what the three Texas cases are all about.  In a new brief filed Tuesday, the state of Texas has given a very broad hint that Section 5’s validity could actually be on the line right now.

The suggestion comes into the case somewhat tangentially, but no less seriously.  Texas’s lawyers on Tuesday raised new questions about the Section in reply to a recurrent theme that their opponents in the cases have pressed vigorously.  If the Court were to embrace that theme, Texas’s new brief contended, it would deepen the constitutional problems that lurk around that important provision.  Tellingly, the brief several times cited the Supreme Court’s 2009 ruling in an Austin, Texas, election law case in which a majority of the Justices seemed barely able to conceal the threat they perceived to the sovereignty of those states that must submit to Section 5’s mandate.  Section 5 survived then, but, it seemed, just barely.

It is important to note, though, that Texas up to this point had been pursuing the legal grievances that are now coming before the Justices without questioning Section 5’s constitutionality.  Indeed, when its lawyers filed the first plea for court review of its new legislative districting maps in a federal District Court in Washington, the document said explicitly that it was doing so “under the assumption that Section 5 complies with the United States Constitution.”  Perhaps that is why Section 5, so far, has not seen to be at risk yet (although other state and local governments are going forward with challenges to it in lower federal courts).

What may have changed the situation in the Supreme Court was how the two sides in the three cases before the Justices have viewed the unfolding of those three cases in the lower courts.  The Justice Department and the opponents of new redistricting maps drawn by the Texas state legislature have contended that Texas has been dragging its feet in getting the legality of those maps reviewed in Washington — as Section 5 requires the state to do.  As a result of the state’s supposed slow-walking the process, the challengers have said, Texas has made it necessary for a federal District Court in Texas to craft its own “interim” maps in order to make sure that there are new districts for use in the 2012 elections in the state even as the legality of the state’s maps was under review in court.

If the state had asked the Justice Department to clear its maps through what the challengers insist is a faster administrative process, instead of taking the question to the Washington District Court, it could have gotten a prompt answer, and the urgency in drawing substitute districts would have gone out of the controversy, or so the challengers have suggested.  Not only did Texas choose the judicial route, the argument goes, it also slowed that process further by asking the District Court to rule summarily in its favor, further complicating the review.

All along, Texas has argued in response that it has moved with dispatch in seeking “preclearance” from a federal District Court in Washington.  And it has argued that it should not now be penalized for having gone to court, which, it notes, is a legal option clearly open to it under Section 5.  It has never disputed its obligation, the state has insisted, to seek preclearance, and it took the controversy to the Supreme Court solely to get the short-term, “interim” situation worked out for the coming election cycle.  It is the challengers, Texas has countered, who have slowed the pace.

Up to this point, the dueling accusations of who is responsible for a preclearance process in which a final ruling in Washington may still be at least weeks away, have looked only like different perceptions, perhaps not of great legal significance.

But Texas’s new brief raised the stakes on that dispute, near to or right at the constitutional level.   Texas, the state’s lawyers wrote, “was under no obligation to seek administrative preclearance [from the Justice Department].”  The court route is expressly authorized by the law, the brief added.  But the challengers are faulting Texas for going to court and are now seeking to have it punished “through the imposition of interim maps giving zero deference to the legislatively enacted maps.”  That, the brief concluded, “would effectively eliminate judicial preclearance as a viable option.”

That position, it added, “is not only antithetical to the statutory scheme, but profoundly problematic as a constitutional matter.  This Court has recognized that Section 5’s intrusion on state sovereignty raises serious constitutional questions” (citing the 2009 decision in Northwest Austin Municipal Utility District No. 1 v. Holder).  The system as it is, forcing states to get Washington’s approval for the laws they pass, the brief said, “is already a remarkable imposition.”  But it “at least guarantees the state a neutral judicial forum.”

If states are now to be forced to defend their laws only before the federal Executive Branch, that “would be an even greater intrusion on the integrity, dignity, and residual sovereignty of the states,” according to Texas’s counsel.  In fact, they went on, administrative preclearance itself “can sometimes be the source of constitutional difficulties,” rather than “the solution.”

The brief summed up: “If…administrative preclearance is the only practical option for covered jurisdictions and seeking judicial preclearance is deemed a delay tactic, then the constitutional difficulties of Section 5 are exacerbated, not ameliorated.”

Elsewhere in the brief, Texas’s lawyers again called up the Northwest Austin decision in seeking to counter the challengers’ argument that the District Court in San Antonio had broad authority to rewrite the Texas legislature’s maps simply because the preclearance process in Washington was taking too long, and without any finding that the court-ordered changes in the state’s maps were necessary to remedy a legal violation.  “If that is really what Section 5 requires,” the brief argued, “then the doubts about its constitutionality are even graver than this Court feared in Northwest Austin.”

Of course, the state’s reminder to the Court about its prior misgivings about Section 5 might serve only to strengthen Texas’s own case, by warning the Justices away from accepting the views of the Justice Department and the challengers about the powers of a federal court to craft “interim” maps.  But it is not possible to dismiss the new assertions altogether as litigating tactics, since it is well known that Texas officials are among those in states that must obey Section 5 who absolutely believe that Section 5 is unconstitutional, and have no real hesitancy about pressing the point.

In its opening brief in the three cases on December 21, Texas had made only a glancing criticism of Section 5, simply citing Northwest Austin for the proposition that “Section 5 is already at the outer limits of Congress’ constitutional authority.”

The challengers, in their own round of opening briefs last month, had anticipated that Texas would seek to put new emphasis on doubts about Section 5’s validity. One of those four briefs remarked: “Much of Texas’s attack on the district court ruling amounts to nothing more than an attack on the wisdom of Section 5 itself….While Texas is free to cast aspersions on Section 5, its attacks on the wisdom of the statute are legally irrelevant here and should be ignored.  Texas has never challenged the constitutionality of Section 5 in this litigation and should not be heard to do so now.”

The challengers filed four reply briefs themselves on Tuesday, but not one of them mentioned the state’s assaults on Section 5.  The briefing in the three cases is now completed.






Recommended Citation: Lyle Denniston, Is Section 5 on the line right now?, SCOTUSblog (Jan. 3, 2012, 6:33 PM),