The Texas Redistricting Case and the Likely Continued Erosion of the Section 5 Process
The Supreme Court has decided to take up Texas’ redistricting plan on an expedited briefing and argument schedule. Even though it’s not directly a case involving preclearance under Section 5 of the Voting Rights Act, functionally the Court’s decision will likely have significant implications for Section 5. While it’s never easy to predict what the Court might do, as I explain below, I think that ultimately the Court will find a way to continue down its recent path of decisions limiting the procedural protections afforded to minority voters by Section 5.
Boiled down to the essentials, the facts of the Texas case are relatively simple. Texas is a jurisdiction covered by Section 5 of the Voting Rights Act. So in order to implement any redistricting plan, Texas needs to go through the process of securing preclearance (or pre-approval) from the federal government—either from the Department of Justice (DOJ) or from a three-judge panel of the D.C. District Court where DOJ serves as defendant. DOJ had some issues with the substance of Texas’ congressional and State House plans, alleging that the plans were discriminatory in effect and purpose in their treatment of Latino voters. Texas sought preclearance of its plans by moving for summary judgment, but the D.C. District Court decided that DOJ had created material issues of fact that necessitated a trial.
The inability to secure Section 5 preclearance created a problem for the State. Texas’ existing plan could not be used because it’s a violation of the Equal Protection principal of one person, one vote, and Texas’ proposed plan could not be used because it did not have the requisite Section 5 preclearance. Yet Texas desperately needs a new redistricting plan to hold next year’s congressional elections—initially scheduled to commence with a primary in March but now, based on an agreement between the political parties as a result of this case, currently scheduled for April. Redistricting disputes like these go to a three-judge district court, with a direct appeal allowed to the Supreme Court. Recognizing the need to remedy a constitutional one person, one vote violation before the next election, a three-judge panel in the Western District of Texas ordered into effect an interim plan for the 2012 elections.
The State of Texas was not enamored of the interim plan ordered by the judges in the Western District of Texas. The most basic reason for the lack of love for the court’s plan was political. Texas is totally controlled by Republicans and the court-ordered interim redistricting plan was not nearly as favorable to Republicans as the State’s proposed plan. Texas, then, asked for an emergency stay of the district court’s order and the Supreme Court granted the stay while simultaneously noting probable jurisdiction (meaning that the Court would hear the case on the merits).
While it’s hard to predict exactly where the Court will go with this, my guess is that a majority of the Supreme Court led by the conservative justices will use this case as yet another vehicle to weaken the procedural protections of Section 5. Indeed, this case seems likely to fit into a strategy I predicted the conservative bloc on the Court would adopt in a 2009 article in the Maryland Law Review.
Roughly speaking, there are two aspects to Section 5. The first is the procedural aspect: it’s the requirement that States covered by Section 5 go to the federal government for preclearance in the first place. The second is the substantive requirement for preclearance: the requirement that States covered by Section 5 prove that their redistricting plans are not discriminatory in purpose or effect.
For several years, the Supreme Court tried to limit Section 5 by adopting substantive interpretations that made it easier for covered States to obtain preclearance. In Reno v. Bossier Parish School Bd. (2000), the Supreme Court made it easier for States to prove an absence of discriminatory purpose. In Georgia v. Ashcroft (2003), the Supreme Court made it easier for States to prove an absence of discriminatory effect. However, while the Court weakened the substantive standard, by-and-large the Court did not reduce the procedural burden on States.
Congress, though, fought back against the Supreme Court’s parsimonious interpretations of the substantive standard. In 2006, Congress both extended Section 5 for another quarter of a century and also amended Section 5 in two key respects, overruling the Supreme Court’s statutory interpretations in Bossier Parish and Ashcroft. In essence, in 2006, Congress poked the Supreme Court in its substantive eye.
Faced with the unwillingness of Congress to accede to the Court’s substantive interpretations of Section 5, the Supreme Court had at least a couple of options. One potential strategy would be to declare Section 5 unconstitutional and entirely eliminate its presence on the voting rights landscape. The problem, though, is that the headline the next day would read: “Supreme Court finds Voting Rights Act unconstitutional.” And such a headline might prove to be damaging to the Court as an institution. The second potential strategy would be to attack Section 5 more subtly by limiting its procedural reach.
The Supreme Court seems to have opted for the second strategy—attacking the Section 5 process. In a somewhat quirky case to which little attention was paid, Riley v. Kennedy (2008), the Supreme Court decided that a change in voting enacted by the Alabama Supreme Court did not need to undergo the Section 5 review process. Thus, the Court limited the procedural reach of Section 5 by excluding certain types of changes from federal review at all. A year later, in the Northwest Austin decision, the Court demurred when given the chance to declare Section 5 unconstitutional. Instead, the Court used a tortured statutory interpretation to open up the ability of more jurisdictions to escape from Section 5 coverage. Thus, the Court limited the procedural reach of Section 5 by allowing more jurisdictions to not have to deal with preclearance at all.
Circling back to the Texas case at hand, I think it’s likely to bring more of the same. Currently, the general governing principles are that unless a State’s plan has Section 5 preclearance, it can’t be implemented. Moreover, a local federal court (here, the Western District of Texas) is not supposed to be able to order into effect a plan proposed by the State that has not received preclearance. I may ultimately prove to be incorrect and the Court may adopt a more limited approach, but I wouldn’t be surprised if the Court reaches a result that makes it much easier for States to have their unprecleared redistricting plans implemented as provisional remedies by local federal courts. Put simply, the Court will likely find a way to allow a loophole that will let States covered by Section 5 end run the Section 5 process.
In this way, the Supreme Court will likely continue to erode the utility of Section 5 without actually declaring it null and void. It’s a smart strategy for a conservative court because such rulings are less likely to make waves than “Supreme Court declares Voting Rights Act unconstitutional” and because Congress likely won’t do anything in response to the Court’s decision.