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Today in the Community: January 5, 2012

Our discussion topic for today is the Texas redistricting cases and what they suggest about where the Court may be headed with its Voting Rights Act jurisprudence more broadly.   Click here to track the week’s discussion so far and to add your views to the debate.

Comments of note from yesterday follow the jump:

Sherrilyn Ifill –

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.

roxanne friedman –  

[in response to Nick Dranias]

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.

Luis Fuentes-Rohwer –

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.

Henry Chambers –

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.

Bertrall Ross –

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.


Recommended Citation: Aaron Tang, Today in the Community: January 5, 2012, SCOTUSblog (Jan. 5, 2012, 10:30 AM),