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Today in the Community: January 4, 2012

Today we continue our discussion of the Texas redistricting cases, which involve challenges to Texas’s newly enacted post-2010 census legislative districting maps.  Our sub-topic for today asks about the case and its implications for Section 5 of the Voting Rights Act, which has been a topic of great controversy in recent years.  Specifically, we’d like to hear your thoughts on what, if anything, you believe these Texas redistricting cases suggest about the propriety of the VRA’s Section 5 pre-clearance mechanism.

Also, several of our favorite comments from yesterday follow the jump:

Nick Dranias 

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.

Justin Levitt 

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.

Nina Perales 

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.

Josh Douglas –

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.

Steve Bickerstaff 

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.

Recommended Citation: Aaron Tang, Today in the Community: January 4, 2012, SCOTUSblog (Jan. 4, 2012, 12:27 PM),