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Supreme Court Messes With Texas, Voting Rights

• January 09, 2012 • 3:19 PM

There is a way the U.S. Supreme Court can extract some sense out of a wildly politicized Voting Rights Act it heard Monday, argues a prominent redistricting specialist.

“Don’t mess with Texas” — this time, the U.S. Supreme Court should have listened. The court has injected itself into a 10-gallon disaster that grows messier with every passing day. Today, the court hears arguments. If only it could slowly back out of the room.

The problem arises (again) from a Texas redistricting plan. Last cycle, Texas re-redrew a federal court’s lines, causing Democrats to twice flee the state to gut a legislative quorum. This caused then-House Majority Leader Tom DeLay to set federal law enforcement on their tail, which in turn earned Mr. DeLay a formal admonishment. The resulting districts were struck down under the Voting Rights Act; the Supreme Court found that they “took away the Latinos’ opportunity because Latinos were about to exercise it.”

This time around, the Texas Legislature drew lines without calling in air support. Because of past discrimination, Texas is subject to Section 5 of the Voting Rights Act, which means the state must “preclear” election-related changes to ensure that they don’t reduce minority citizens’ practical ability to elect candidates of choice. No changes legally can be implemented until they are precleared. Most other jurisdictions that must preclear redistricting submit Section 5 changes to the U.S. Department of Justice, which has a relatively speedy procedure for assessing preclearance — and which has precleared every statewide map that it’s considered this cycle. Texas chose, instead, to go to a federal court in the District of Columbia — a permissible route, but a slower one, with the same substantive standards but a judicial decision-maker rather than the attorney general.

The D.C. court found that it couldn’t preclear the Texas plans yet, saying the state had used the wrong standards in assessing whether it complied with the act. And besides, said the court, there were serious allegations that Texas had intended to discriminate in drawing the maps, and those allegations of illegality needed to be worked out at trial.

Meanwhile, a different set of lawsuits was raging in a San Antonio federal court (17 different lawsuits have been filed over Texas lines so far this cycle). Based on new Census numbers, the districts from the last cycle no longer had equal populations, violating the constitutional guarantee of equal representation. And there were still other alleged problems with the new maps: problems with different parts of the Voting Rights Act, and allegations of racial and partisan gerrymandering. So with filing deadlines for candidates on the doorstep, nobody knew where anyone was running … because there were no valid districts to run in.

Right around Thanksgiving, the federal court in San Antonio drew temporary lines, for 2012 elections only. That’s when the Supreme Court stepped in. It stayed the temporary lines, apparently to hear Texas’s allegations that the San Antonio court should have paid more attention to the state’s wishes in drawing an interim plan. That’s the argument that the court is hearing today.

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. The court does not do its finest work at a dead sprint, and it has given itself a thorny problem to resolve in a hurry.

The bind confronting the court is that there is no way to purge the process of potential gamesmanship. Before the San Antonio court drew its maps, there were no lawful districts: Existing districts were malapportioned, and the enacted plan had not been precleared. Texas law provides few criteria for state legislative districts, and none at all for Congress.

This vacuum creates bad incentives no matter what the legal regime. If the Supreme Court tells courts like San Antonio to defer to a state’s enacted plan, states could drag their feet on preclearance in D.C., in order to implement their wishes through courts back home. If not, those who oppose state plans could drag their feet in D.C. to delay implementing state maps that would be precleared validly in due course. And it’s all complicated by the prospect that the interim plan lines could themselves feed back into the preclearance decision. Yeek.

The least bad of the available options is for the court to go back to first principles. The whole point of Section 5 was to stop covered jurisdictions from immediately getting their way, based on demonstrated past problems with “their way.” Section 5 imposes delay — at least until either the DOJ or the D.C. federal court can sign off — as its entire reason for being.

It’s true that the Supreme Court has recently raised some questions about that reason for being. But this case is not an excuse to answer those questions. It’s not that the court is averse to expanding the question presented in the service of an overly bold holding. It’s that other cases will present the issue directly, without the imperative to sprint.

Which leaves today’s case. If the court is concerned with deference to a state sovereign, Texas’s legitimate policy interests can still be (imperfectly) recognized. The way to do what Texas appears to want, without risking the harm to minorities that Section 5 exists to protect, is to start with the last precleared expression of Texas’s desires. This “benchmark” plan should be the baseline for a court drawing an interim plan, with updates for population growth and guesstimates for compliance with the Voting Rights Act.

The good news is that this is what the San Antonio court says that it did. There are doubtless flaws — the court was working at warp speed to put a plan in place before the elections had come and gone. But unless the 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 San Antonio court’s general approach, but remand for that court to incrementally explain some of its particular choices. If the added scrutiny leads to a few tweaks that get even closer to the benchmark plan, everyone can claim victory. But this much is clear: with no particularly good answer other than flying us all around the world backward to bring us back to Thanksgiving, the Supreme Court needs to issue a rule in keeping with Section 5’s design, and then get out of the way. On the double.

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Justin Levitt
Justin Levitt is a professor at Loyola Law School-Los Angeles, where his courses include Law of the Political Process. He served in 2008 as the National Voter Protection Counsel for President Obama's presidential campaign, and his research has been cited by Congress and the courts, including the U.S. Supreme Court.

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