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.

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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.”