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The Texas Redistricting Case and the Likely Continued Erosion of the Section 5 Process

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7 Responses

  1. BR says:

    Hi Michael,

    Enjoyed the post. A couple of question: Doesn’t the implementation of an unprecleared redistricting plan as a provisional remedy just delay the impact of the preclearance objection for one election? So Texas may be able to go forward with the 2012 elections under the un-precleared plan because of the stresses of time, but presumably it would have to issue a pre-clearable plan prior to the next election. Or are you suggesting an ongoing cycle in which the State continues to put forward un-preclarable plans that would be implemented as provisional remedies for every subsequent election? I’m not sure that the Court would want to go down this path because while it may, to a certain extent, avoid the major headline of “Supreme Court declares Voting Rights Act unconstitutional,” it would still face the headline of “Supreme Court guts the Voting Rights Act.” But it will be interesting to see what it ultimately does with this case.

  2. Michael Pitts says:

    Thanks for the comment, BR. I suppose it’s possible that we could get a series of unprecleared interim plans, though that seems unlikely. One interesting question is what sort of benchmark for Section 5 review an interim plan creates. The State of Texas raised this issue in its motion for a stay worrying that an interim plan would create a new benchmark for preclearance. Also, maybe I’m reading into it too much, but somewhat implicit in your comment is that it might not be that big of a deal to have the interim plan because it’s only one election and there’s always another election right around the corner. To that notion, there are at least two quick responses that come to mind. First, one might take the position that one election with an unprecleared (and perhaps discriminatory plan) is one too many, especially when it comes to the fundamental right to vote. Second, if one looks beyond the context of congressional elections that occur every two years, there might be more of a concern. For instance, say a state legislature (or county commission or school board) elects candidates every four years. That means normally there are two or three elections under a plan each decade. If an unprecleared plan could be used as an interim plan in such an instance, that would mean that a third to half of the elections would be under an unprecleared plan, perhaps making the potential harm a bit greater.

  3. Very interesting post. Also interesting is that Riley was written by Justice Ginsburg and joined by Justice Breyer. Northwest Austin was joined by Justices Stevens, Souter, Ginsburg, and Breyer.

    Do you think this is a coincidence, or is there something about procedural “attacks” on Section 5 that are more likely to attract support from the more liberal Justices? And do you think a potential ruling in Texas’s favor will similarly attract seven or more votes?

  4. JK says:

    I think the DC court is at fault here. Had they moved expeditiously, not taking all-comers of intervenors (which added delay), accepted Texas proposed trial date of early October, and reached an answer quickly, the interim maps drawn by the SA court would likely have been more acceptable to the state. Texas then might not have appealed a DC decision, preferring instead to take their chances with the SA court. For example, since DOJ had no objections to the Senate plan (which passed the Texas Senate 29-2), the DC court presumably would have had to preclear it. But since the DC court allowed unnecessary intervenors and a single unhappy state senator objected, the DC court could not preclear the Senate map until the trial is conducted. Remember, the DC court started the case at the same time as the SA court (which had to wait for Perry’s signature), but the SA court completed a trial in September whereas the DC court has only recently scheduled its trial for January! Bottom line…had the DC court limited the proceedings to Texas and DOJ, we would already have the preclearance answer, and any faults found by the DC court would have been limited to the set (or a subset) of objections stated by DOJ. Instead, because of the DC court delays fomented by DOJ and the intervenors, the SA court decided to use a ‘status quo’ approach for the interim maps (under a theory which makes no sense given the existence of written objections filed by DOJ in the DC court) instead of deferring to the state’s map based on DC court results that would otherwise exist had the DC court not taken the delay bait. Now, BOTH courts are going to be overcome by events. Obviously, SCOTUS does not trust the SA court to redraw the maps with simple guidance or they would have given it and remanded. The DC court, which STILL has not produced a written opinion as to why they denied Texas’ summary judgement motion six weeks ago, is now effectively paralyzed. SCOTUS won’t fault the legislature for taking as long as necessary to create redistricting bills, and they won’t fault the state’s attorneys because they have moved expeditiously since the bills were signed. That leaves DOJ and the intervenors as the culprits for delay. I think SCOTUS will view the DC court delays as legal gamesmanship, unwittingly helped along by a Keystone cops DC court. And they will agree with Judge Smith’s characterization of the SA court’s actions as a “runaway plan” that was followed by a supplemental opinion that smells like advocacy. These are professional no-nos for judges. Look for SCOTUS to send strong messages to both courts.

  5. Mike Pitts says:

    Thanks, William. Excellent questions. I think Justices Ginsberg and Breyer joined Riley in a strategic attempt to keep the opinion as narrow as possible (I write about the possible narrow interpretation of Riley in my Maryland article). It wouldn’t surprise me if some of the liberals on the court again joined an opinion in the Texas case that would have the possibility of being narrowly interpreted. I’m still not exactly sure what explains the liberals on the Court joining the Northwest Austin decision. Some folks have speculated that they joined in order to send a strong message to Congress to revisit the extension of Section 5 because of it’s likely unconstitutionality. I tend to think the liberals joined in order to send a strong message to DOJ to be careful in its substantive application of Section 5 during this redistricting cycle.

  6. Daniel Artz says:

    I understand the politics of the Court, but as a Texan, I am really bothered by the fact that Texas and a few other states have to go through the process of preclearance when a majority of states do not. I really wish the Court would be done with it and declare Section 5 Unconstitutional. The practical effect of what we have now is that States which are not subject to Section 5 preclearance, primarily States in the Northeast, midwest, and far west, a majority of which are dominated by Democratic majorities, are free to gerrymander to their heart’s content on Congressional redistricting, while minority groups are given a very effective weapon to fight any Republican gerrymandering in any State, like Texas, subject to preclearance under Section 5. If Congress wants to impose preclearance under the Voting Rights Act, let it impose is equally across the board to all States – right now, it amounts to unilateral disarmament in the war of gerrymandering which occurs every ten years.

  7. Unilaterial Disarmament? says:

    Actually, Daniel Artz, even if you set aside the Section 5 states, the GOP still has total control over redistricting in states representing more House districts than the Democrats. For example, large non-Section 5 states with redistricting controlled by GOP include Pennsylvania, Ohio, and Michigan; the only large state whose redistricting is controlled by Democrats is Illinois. Both sides have maxed out their redistricting prospects in these examples. Even with Section 5, GOP control over redistricting in North Carolina (no gubernatorial veto there) has resulted in a +4 GOP map that received preclearance from the Obama DOJ–hardly a “unilateral disarmament.”