At 1 p.m. on Monday, the Supreme Court will hold 70 minutes of argument in three cases — being heard on an expedited schedule — on the new election districts that Texas will use in 2012 balloting for the state legislature and for its expanded delegation in Congress. Arguing for the state of Texas, with 30 minutes of time, will be former U.S. Solicitor General Paul D. Clement, now in private practice in Washington with the Bancroft law firm. He will be followed by Principal Deputy U.S. Solicitor General Sri Srinivasan, arguing for the federal government as an amicus, with ten minutes. Arguing next, for the challengers to the state legislature’s redistricting maps, with 30 minutes, will be Jose Garza, a private attorney in San Antonio who has been representing the Mexican American Legislative Caucus in these cases.
Just as the Supreme Court’s controversial ruling two years ago in Citizens United v. Federal Election Commission has become a major influence on the financing of the 2012 elections, the Court’s coming decision this Term on three legislative redistricting cases from Texas may have a strong impact on who wins some key election contests — and might even help settle control of the new U.S. House in the Congress that gathers next January. The ruling also may bring a severe test of the constitutionality of America’s most important law on the voting opportunities of minorities, the Voting Rights Act of 1965. For a case that could be decided on very narrow grounds, it has developed potentially historic proportions.
The three cases under review are Perry v. Perez (11-713), on redistricting the state house,Perry v. Davis (11-714), on redistricting the state senate, and Perry v. Perez (11-715), on redistricting of seats in the U.S. House, expanded for Texas this year from 32 to 36 to account for expanded population in the state since 2000, especially among Hispanics. The dispute revolves around new districts that the state legislature fashioned earlier this year — in May for the two houses of the state legislature, and in June for the U.S. House seats.
Although the cases as they reached the Supreme Court are focused closely on the special requirements imposed on some states — mostly in the South — by Section 5 of the Voting Rights Act of 1965, their implications range well beyond that provision and raise fundamental questions about the division of power between state legislatures and federal courts in the crafting of new districts following each ten-year federal census, and about how far federal courts may go in that process to assure election opportunities for minority races or ethnic groups.
This dispute is, at its core, a fundamental test of historic questions about federalism — that is, the roles of federal vs. state governments in managing election processes.
The Section 5 issue arises because Texas, with a prior history of discrimination in voting based on race, is required by that section to get official clearance in Washington for any change it makes in any voting method or procedure — and that includes new districting maps — either from the U.S. Justice Department or from a special three-judge District Court in the nation’s capital. Texas, in fact, has an ongoing procedure in that District Court, at a trial starting later this month, seeking clearance of the three redistricting maps drawn by its legislature. Either process is actually called “preclearance,” because a state or local government covered by Section 5 is not supposed to put any election change into actual effect without that official seal of approval.