Yesterday, in an unusual afternoon session, the Justices of the Supreme Court jumped right into the political thicket, debating the authority of a federal court in Texas to draw election districts for the state’s upcoming primaries. Texas currently has no legally enforceable district lines. Its current districts are now badly out of step with the constitutional requirements of one person, one vote, and its new district lines have yet to be precleared, as required by Section 5 of the Voting Rights Act, one of our Nation’s most iconic and important federal civil rights statutes. During yesterday’s 70-minute argument in Perry v. Perez, the Justices sought to figure out a solution that would permit the upcoming primary elections to go forward, consistent with the requirement of the Constitution and the Voting Rights Act. Hovering over oral argument in Perry v. Perez was the question of the constitutionality of the Act’s preclearance requirement. In 2009, in NAMUDNO v. Holder, the Roberts Court came dangerously close to striking down this bedrock provision of the Voting Rights Act, but yesterday, at least, the Justices showed little interest in debating the Act’s constitutionality. As Chief Justice Roberts specifically observed, “the constitutionality of the Voting Rights Act is not at issue here.”
After putting this 800-pound gorilla to the side of the courtroom, the Justices bore down on the pressing and immensely complicated problem of how to give guidance to districts courts facing the difficult and unwelcome task of drawing election districts when the state has no legally enforceable plan of its own. Justice Antonin Scalia seemed prepared to accept the argument made by Paul Clement, representing the State of Texas, that the district court should have permitted Texas to use its unprecleared plan as an interim plan, even though Section 5 of the Voting Rights Act forbids Texas, as a covered jurisdiction, from enforcing any voting change until it has been precleared either by a three-judge court or the Department of Justice. But the other members of the Court did not seem willing to join him.